Immigration Article of the Day: Privatized Detention & Immigration Federalism by David S. Rubenstein and Pratheepan Gulasekaram

Privatized Detention & Immigration Federalism by David S. Rubenstein and Pratheepan Gulasekaram,  
, Stanford Law Review Online, Vol. 71, March 2019 

Abstract

The vast majority of detained immigrants are held in facilities operated by private corporations. This multibillion-dollar industry shapes immigration policies directly through contractual implementation, and indirectly through lobbying at all levels of government. Over the past decade, academics and dedicated advocates have shed critical light on the structural causes and effects of privatized immigration detention, offering a range of policy prescriptions along the way. Until now, however, federalism has been a virtual blind spot in that reformist agenda. Intervening, this Essay draws federalism into the spotlight.

What autonomy do states and local governments have to regulate, license, or otherwise monitor private immigration detention? More specifically, under what circumstances are private entities, by dint of their public contracts, shielded from subfederal law under the doctrines of preemption, intergovernmental immunity, and derivative immunity? And is there something unique about immigration that might skew the doctrinal analysis in favor of the federal government and its contractors? By mapping the myriad ways that privatized detention intersects with immigration federalism, this Essay provides crucial mooring for the doctrinal, political, and strategic battles ahead.

KJ