[00:00:00] Speaker 04:
Chen, please proceed.

[00:00:02] Speaker 01:
May it please the court, Marcia Chen for the state defendants, and I'm joined by Ellen Range.

[00:00:08] Speaker 01:
I'd like to reserve five minutes for rebuttal.

[00:00:11] Speaker 04:
And I'll try to remind you, if you forget, but you need to watch the clock yourself.

[00:00:18] Speaker 04:
Thank you, Your Honor.

[00:00:20] Speaker 04:
We'll do our best.

[00:00:23] Speaker 01:
The state's police power is at its apex when it regulates the health and safety of its residents.

[00:00:30] Speaker 01:
GEO believes it can disregard these laws even though the Ninth Circuit, the state of Washington, and its own federal contract require compliance with state health and safety laws.

[00:00:42] Speaker 01:
By enjoining HB 1470, the district court erred in two ways.

[00:00:49] Speaker 01:
First, HB 1470 does not discriminate against GEO, and the Ninth Circuit's recent decision in Noizar confirms it.

[00:00:58] Speaker 01:
Second, GEO's challenge to sections two and five are not justiciable.

[00:01:03] Speaker 01:
I'll start with impermissible discrimination.

[00:01:07] Speaker 01:
There's no question that Geo's Tacoma facility was the impetus for the Washington legislature.

[00:01:13] Speaker 01:
A never ending series of hunger strikes and abhorrent conditions at the facility spurred the legislature into action.

[00:01:21] Speaker 01:
But the legislature also ensured that HB 1470 is not limited to Geo, lest this happen again.

[00:01:28] Speaker 01:
It applies to all private detention facilities, regardless if it contracts with the federal government, state government, or the local government.

[00:01:39] Speaker 01:
The fact that it only applies to GEO as a practical matter today is not enough for impermissible discrimination.

[00:01:46] Speaker 01:
North Dakota says as much, and Noahzar confirms it.

[00:01:51] Speaker 01:
In North Dakota, the Supreme Court considered a state law that specifically required out of state liquor wholesalers to specially label and report its liquor sales to a federal military enclave.

[00:02:06] Speaker 01:
There, the plurality held there was no impermissible discrimination given the greater regulatory context in North Dakota.

[00:02:14] Speaker 01:
North Dakota had a comprehensive liquor regulation system that was meant to encourage temperance.

[00:02:22] Speaker 00:
In fact, the plurality- If I can interrupt you for a moment to ask you this.

[00:02:25] Speaker 00:
There appears to be some requirements in HB 1470 that I don't see imposed on any other facilities, for example, the provision of

[00:02:38] Speaker 00:
fresh fruits and vegetables, the requirement that HVAC systems be adjustable by certain rooms and areas, the provision of free hygiene products, and the provision that talks about civil penalties, which are quite severe.

[00:02:55] Speaker 00:
What do we do with those provisions?

[00:02:58] Speaker 01:
Your Honor, two points.

[00:02:59] Speaker 01:
First, under NWASR, the proper comparator isn't whether or not HP 1470 treats CHEO's Tacoma facility, the private detention facility that contracts with the federal government, the same as congregate care facilities.

[00:03:12] Speaker 01:
The proper comparator is state private detention facilities.

[00:03:16] Speaker 01:
And here, much like North Dakota, state private detention facilities are subject to much more onerous regulations.

[00:03:22] Speaker 01:
They are banned from existing at all.

[00:03:24] Speaker 01:
But to the extent that the court wants to look to congregate care facilities, they are actually identical.

[00:03:30] Speaker 01:
For example, on the temperature control piece, which is not included in GEO's chart, WAC 246337-135 is the exact same temperature control requirement that is included in HB 1470.

[00:03:48] Speaker 01:
As for the hygiene requirements, our chart

[00:03:51] Speaker 01:
in our opening brief indicates there's comparable requirements for congregate care facilities and for both hygiene products and for fresh fruit and nutritious meals.

[00:04:05] Speaker 01:
But the point is, is the point made in Noizar, that the right comparator doesn't depend on whether or not at the moment there is another facility that may apply, that HB 1470 might apply to.

[00:04:21] Speaker 01:
There, Washington's Minimum Wage Act exempted state-run facilities, but otherwise applied to all private detention facilities, whether it contracted with a federal government, state government, or local government.

[00:04:35] Speaker 01:
And it was enough under Noah's Ark that it would apply to a state detention facility if one were to exist.

[00:04:42] Speaker 00:
So intergovernmental immunity does not turn... If we don't accept that argument, is one potential solution to simply excise the requirements that are not imposed on other facilities?

[00:04:56] Speaker 01:
Certainly.

[00:04:57] Speaker 01:
We certainly disagree with the district court's order that it struck down the entire provisions.

[00:05:04] Speaker 01:
I think United States versus California shows that.

[00:05:06] Speaker 01:
United States versus California upheld certain provisions, but otherwise struck down ones that were overly burdensome.

[00:05:14] Speaker 01:
But we would disagree that the HB 1470 is overly burdensome.

[00:05:19] Speaker 01:
on Geo's Tacoma facility here.

[00:05:23] Speaker 01:
Again, the Dawson v. Steger and Noizart both indicate that it's the letter of the law that is significant.

[00:05:31] Speaker 01:
And the letter of the law under HB 1470 is that HB 1470 applies to all contracted facilities, whether with the federal government, the state government, or local governments.

[00:05:42] Speaker 05:
Let me ask you this.

[00:05:43] Speaker 05:
It's a variation of the question that I think Judge Nguyen was asking you.

[00:05:48] Speaker 05:
To the extent that the comparators are either private residential facilities in the state or private and voluntary civil commitment facilities, the regulations are pretty similar to the regulations imposed upon the facility in Tacoma.

[00:06:04] Speaker 05:
Correct.

[00:06:04] Speaker 05:
Is your argument that the differences are really de minimis?

[00:06:08] Speaker 01:
No, Your Honor, it's not de minimis.

[00:06:10] Speaker 01:
They're actually comparable and similar.

[00:06:11] Speaker 01:
And I would look to you- No, wait a minute.

[00:06:14] Speaker 05:
Similar is not identical.

[00:06:16] Speaker 05:
That is to say there are small differences.

[00:06:18] Speaker 05:
So what do I do with the differences?

[00:06:20] Speaker 05:
Do I say I can disregard them because they are de minimis?

[00:06:23] Speaker 05:
There was a suggestion from Judge Nguyen that maybe we should excise them.

[00:06:27] Speaker 05:
So what are we supposed to do with that?

[00:06:28] Speaker 05:
What's your position?

[00:06:30] Speaker 01:
Our position is that this is no different from United States versus California.

[00:06:33] Speaker 01:
In United States versus California, there was provisions in the inspection requirements that suggested there was due process regulations.

[00:06:40] Speaker 01:
And in there, the Ninth Circuit accepted the idea that those were no different from the regular inspection requirements for other facilities for inspections for conditions of confinement.

[00:06:51] Speaker 01:
So I think that they are comparable and they are different.

[00:06:55] Speaker 05:
I'm sorry, they are comparable and what?

[00:06:58] Speaker 01:
And I apologize, they're comparable and nearly identical.

[00:07:02] Speaker 05:
So to the extent there is any difference, I think- So I suggested the phrase de minimis, and you so far are not embracing that.

[00:07:08] Speaker 01:
I'm not embracing that because in the United States versus California, there was a- just for intergovernmental immunity purposes, de minimis- there is no de minimis exception to intergovernmental immunity.

[00:07:18] Speaker 05:
So you want to say substantially identical rather than de minimis?

[00:07:22] Speaker 01:
Your honor, I think they are substantially identical and I want to make sure.

[00:07:25] Speaker 05:
No, I understand that, but maybe we're just fussing over words.

[00:07:28] Speaker 05:
Okay, but your position is they are substantially identical and absolute identity is not required.

[00:07:33] Speaker 05:
That's your position.

[00:07:34] Speaker 01:
Correct, because to the extent they are no different.

[00:07:37] Speaker 00:
But you pointed out correctly that there's no de minimis exception, so we could do something along the lines of the extent that they're identical.

[00:07:48] Speaker 00:
That's fine.

[00:07:49] Speaker 00:
and to the extent that they impose greater burdens, then that's not acceptable.

[00:07:53] Speaker 00:
But it doesn't mean that we have to strike down the entire provision.

[00:07:57] Speaker 01:
We do not have to strike down the entire provision.

[00:07:59] Speaker 01:
And I want to make sure that I'm clear.

[00:08:01] Speaker 01:
HB 1470 takes the same regulations that apply to congregate care facilities.

[00:08:07] Speaker 01:
And to the extent they apply, they apply them to private detention facilities.

[00:08:10] Speaker 01:
They're all taken from various regulations from congregate care facilities.

[00:08:14] Speaker 01:
So for example, I think Your Honor referred to civil penalties.

[00:08:18] Speaker 01:
Residential treatment facilities are subject to civil penalties under RCW 71 12 5 4 5 Psychiatric hospitals are also subject to civil penalties whack 2 4 6 3 2 2 0 2 5 So these were all provisions that were taken from congregate care facilities, but it was only a subset so actually HB 1470 still treats a

[00:08:42] Speaker 01:
private detention facilities better than other congregate care facilities.

[00:08:46] Speaker 01:
Congregate care facilities are subject to much more extensive regulations regarding service animals, regarding health care records, regarding lighting and systems and things like that.

[00:08:57] Speaker 01:
And they can be enforced by the county prosecutor, for example.

[00:09:05] Speaker 01:
Those regulations were not adopted for HB 1470.

[00:09:07] Speaker 01:
So HB 1470 only provides a subset of the regulations that apply to congregate care facilities.

[00:09:14] Speaker 01:
So they're actually regulated better than other congregate care facilities to the extent that is the comparator at all.

[00:09:21] Speaker 05:
By better you mean regulated more lightly?

[00:09:24] Speaker 05:
Correct.

[00:09:27] Speaker 01:
I also want to make a point and address Judge Fletcher's opinion in Nwazar to suggest that criminal prisons and DOC run facilities are not the right comparator.

[00:09:39] Speaker 01:
And that's for the several reasons that Judge Fletcher identified in Nwazar.

[00:09:42] Speaker 01:
There's legal differences between a public facility and a private facility.

[00:09:47] Speaker 01:
But I also want to highlight another difference.

[00:09:49] Speaker 01:
Geo's Tacoma facility involves civil detainees, not those incarcerated for a crime.

[00:09:58] Speaker 01:
Jones B. Blahnis confirms that the Eighth Amendment's cruel and unusual punishment standard does not apply for civil detainees.

[00:10:08] Speaker 01:
So the civil detainees at the Northwest, at Geo's Tacoma facility are owed more than what's the minimal civilized necessity, life's necessities.

[00:10:20] Speaker 01:
So the standards are different than publicly run facilities.

[00:10:24] Speaker 05:
Do we have any numbers at all as to what's going to be the ultimate fate of those who are incarcerated?

[00:10:32] Speaker 05:
I know that some will end up being deported, or in the modern word, removed, and some will be held to have a right to be here.

[00:10:40] Speaker 05:
Do we have any numbers as to the proportions of those two categories?

[00:10:43] Speaker 01:
Not in this record, but there's a significant that are that will not be deported that are That's not in the record because this is based on a preliminary injunction But there's certainly the folks in the Geo's to come with facility include asylum seekers they include Legal permanent residents they include DACA recipients who all have legal status here Or at least claim that they do and may end up being adjudicated and such correct your honor correct and

[00:11:13] Speaker 01:
And I think it's very clear.

[00:11:14] Speaker 00:
What's your position on section six.

[00:11:19] Speaker 00:
Section six on civil penalties civil penalties and any other comparable law.

[00:11:24] Speaker 01:
Yes your honor and the comparable laws are the ones I identified psychiatric hospitals for example are.

[00:11:30] Speaker 01:
penalized $1,000 to $10,000 per violation.

[00:11:34] Speaker 01:
GO's HB 1470 is arguing is $1,000 per violation.

[00:11:39] Speaker 01:
And that citation is WAC 246-322-025.

[00:11:48] Speaker 01:
I want to be clear.

[00:11:50] Speaker 01:
Without HB 1470, GEO's Tacoma facility is the only private congregate care facility that lacks separate state regulation.

[00:11:58] Speaker 01:
Every other congregate care facility is regulated by the state.

[00:12:03] Speaker 01:
So HB 1470 is an act of parity, not discrimination.

[00:12:07] Speaker 01:
It completes a missing puzzle piece of state regulation for congregate care facilities.

[00:12:16] Speaker 01:
I'd also like to be clear.

[00:12:18] Speaker 01:
But that does not mean the state can impose whatever burden it wants.

[00:12:22] Speaker 01:
Newsom provides a backstop.

[00:12:25] Speaker 01:
The state can't regulate a private contractor in such a way that would control federal operations.

[00:12:31] Speaker 01:
HB 1470 does nothing of the sort.

[00:12:34] Speaker 01:
Section two's requirements are basic.

[00:12:36] Speaker 01:
They require infection control, basic hygiene, and all of its requirements are consistent with federal standards.

[00:12:46] Speaker 01:
To the extent there are any differences between the congregate care facilities and HB 1470, I would note that, again, one side does not fit all.

[00:12:54] Speaker 01:
The legislature only took a subset of the regulations that apply to congregate care facilities and applied them to private detention facilities.

[00:13:03] Speaker 01:
Section 10 merely exempts those that are already regulated under other separate laws.

[00:13:14] Speaker 01:
I want to make sure I reach the standing question, unless Your Honors have any questions on preemption or direct regulation.

[00:13:21] Speaker 01:
On those points, I would just note that the United States does not join GEO on its claims of preemption and direct regulation.

[00:13:29] Speaker 01:
But I'd also like to reach standing.

[00:13:31] Speaker 01:
GEO does not have standing to challenge Section 2, because DOH has only just started its role-making.

[00:13:38] Speaker 01:
And Whole Women's Health v. Jackson precludes just disability on Section 5, the private right of action.

[00:13:45] Speaker 01:
There is no redressability for Section 5, because the state defendants are A.G.

[00:13:52] Speaker 01:
Ferguson and Governor Inslee.

[00:13:55] Speaker 05:
Yeah, 5 is easy.

[00:13:56] Speaker 05:
Tell me more about 2.

[00:13:57] Speaker 01:
Sure.

[00:13:59] Speaker 01:
Standing is not dispensed in gross, and to be clear, the state has tried to enforce Section 3 of HB 1470, and we're not challenging standing on Section 3's provisions.

[00:14:09] Speaker 01:
It is Section 2 that GEO lacks standing for.

[00:14:13] Speaker 01:
For example,

[00:14:14] Speaker 01:
GEO now makes three arguments for why it can challenge Section 2.

[00:14:20] Speaker 01:
First is its HVAC system.

[00:14:21] Speaker 01:
It suggests that Section 2's HVAC requirements will require $3 million in investments.

[00:14:27] Speaker 01:
But GEO's own declaration indicates that its HVAC system is consistent and compliant with Section 2's requirements because it can be controlled by zone.

[00:14:36] Speaker 01:
That's GEO's own submitted declaration.

[00:14:39] Speaker 01:
As to arguments it makes in briefing regarding fresh fruits and the provision of toiletries, GEO never alleged that it's not providing fresh fruit or toiletries to the detainees.

[00:14:52] Speaker 01:
That's not in the complaint.

[00:14:53] Speaker 01:
And if anything, the PBNDS suggests that GEO is providing fresh fruit and toiletries.

[00:14:59] Speaker 01:
And those citations are 6 SER 1140 and 5 SER 1070.

[00:15:08] Speaker 01:
So there is no controversy here.

[00:15:11] Speaker 01:
There's no concrete plan to violate Section 2, and DOH is only in the nascent stages of rulemaking.

[00:15:18] Speaker 04:
I don't want to interrupt your argument, but I thought you said you wanted to save five minutes.

[00:15:26] Speaker 04:
Thank you, Your Honor.

[00:15:27] Speaker 04:
You're down to 440.

[00:15:29] Speaker 01:
I'll reserve.

[00:15:39] Speaker 02:
Good afternoon, and may it please the Court.

[00:15:41] Speaker 02:
I'm Dominic Dray, and with Chris O'Brien, I represent the appellee, the GEO Group.

[00:15:45] Speaker 02:
I should note that five of these minutes actually belong to the United States.

[00:15:49] Speaker 02:
Washington adopted HB 1470 to circumvent this Court's decision in Newsom.

[00:15:55] Speaker 02:
And like the state law in Newsom, HB 1470 restricts ICE's statutory discretion

[00:16:02] Speaker 02:
to select detention facilities that it deems appropriate.

[00:16:06] Speaker 02:
And like the state laws in Newsom and Boeing, HB 1470, quote, dictates the manner in which the federal function is carried out, end quote.

[00:16:15] Speaker 02:
That's page 758 from Newsom.

[00:16:20] Speaker 02:
That is intergovernmental immunity to a T. That is the direct regulation problem.

[00:16:25] Speaker 02:
To make matters worse, it's also discriminatory.

[00:16:28] Speaker 02:
The only facility to which the law applies, and it's not by accident, it's absolutely by design, is the Northwest Immigration Processing Center.

[00:16:38] Speaker 02:
That is accomplished by exclusion.

[00:16:40] Speaker 02:
It is true—my friend on the other side points to the letter of the law controlling—it is true that the statute doesn't expressly target, but it carves out everybody else.

[00:16:49] Speaker 05:
Are you saying in this argument that in order for us to be allowed to compare what's happening with your facility to these other facilities, that they all have to be in the same statute?

[00:17:00] Speaker 02:
They have to be the same standard.

[00:17:01] Speaker 02:
I don't care if it's in two different statutes.

[00:17:02] Speaker 05:
Okay.

[00:17:03] Speaker 05:
Well, then we've got these other regulations for things that are comparable.

[00:17:08] Speaker 05:
So you better address that rather than say that this is sui generis.

[00:17:13] Speaker 02:
Yes.

[00:17:13] Speaker 02:
No, I think your honors and Judge Wen's line of questioning was exactly right.

[00:17:16] Speaker 02:
Channeling the court in the California case, United States versus California.

[00:17:20] Speaker 02:
There is no de minimis exception.

[00:17:22] Speaker 02:
If the standard is different, the United States Supreme Court, it's a plurality, but in North Dakota says the law must burden the two equally, is the exact quote.

[00:17:31] Speaker 02:
There's no de minimis exception.

[00:17:32] Speaker 02:
So unless they are exactly the same burden, and this is where the chart is somewhat helpful, the first two columns of our chart relate to the disparate burden.

[00:17:43] Speaker 02:
They are not the same burden.

[00:17:44] Speaker 02:
There's no de minimis exception.

[00:17:46] Speaker 02:
So what are the differences?

[00:17:48] Speaker 05:
So what are the differences that you regard as material and then disabling to the other side?

[00:17:53] Speaker 02:
Yes.

[00:17:54] Speaker 02:
Every one of them, it's pages 38 through 44 of the brief.

[00:17:57] Speaker 02:
List a few.

[00:17:58] Speaker 02:
We talk about, you know, for example, the issuance of toiletries, the issuance of fresh fruit versus frozen and so forth, the HVAC requirements.

[00:18:07] Speaker 02:
They're all traced out in the chart.

[00:18:10] Speaker 02:
And there's no contest, by the way.

[00:18:11] Speaker 02:
I mean, please pay attention.

[00:18:13] Speaker 02:
The state always says,

[00:18:14] Speaker 02:
It regulates on the same sort.

[00:18:16] Speaker 02:
That's a quote from the reply brief at eight and nine.

[00:18:19] Speaker 02:
Or today we heard that they're comparable or they're not overly burdensome.

[00:18:24] Speaker 02:
None of those is the standard.

[00:18:26] Speaker 02:
It has to be exactly the same.

[00:18:27] Speaker 02:
There's no de minimis exception.

[00:18:29] Speaker 02:
And that's necessary because otherwise it puts courts in the impossible position of deciding how much a state can discriminate against the federal government.

[00:18:36] Speaker 02:
This is a supremacy clause doctrine at the end of the day.

[00:18:39] Speaker 02:
And there's just no room for that.

[00:18:40] Speaker 02:
Now, you know, the state points to their preferred comparators, but it's notable that those comparators are also exempted from the statute itself.

[00:18:51] Speaker 02:
So, for example, the state points to involuntary civil detention.

[00:18:58] Speaker 02:
That is exactly what we have here.

[00:19:00] Speaker 02:
This is involuntary civil detention, as the court pointed out, but it's a totally different rule.

[00:19:06] Speaker 02:
You have the Involuntary Treatment Act.

[00:19:08] Speaker 05:
You say totally different rule.

[00:19:09] Speaker 05:
Tell me what you mean by totally different.

[00:19:11] Speaker 02:
Well, it's not the same.

[00:19:12] Speaker 02:
I should say it's not the same, Your Honor.

[00:19:14] Speaker 02:
And whether or not there are regulations on the same subject does not matter.

[00:19:19] Speaker 02:
They have to be identical.

[00:19:20] Speaker 05:
That gets you the discriminative... Identical in the sense of fresh fruit as distinct from frozen fruit?

[00:19:26] Speaker 02:
Frozen, dried, canned, yes.

[00:19:28] Speaker 02:
And under the PBNDS, we're allowed to do and do serve the former, and under this, you're not.

[00:19:35] Speaker 02:
So it's a different law, is the point.

[00:19:38] Speaker 02:
Now, the discriminatory prong is probably the easiest one, and I think the district court went that way in light of the U.S.

[00:19:45] Speaker 02:
Supreme Court's decision in 2022 in United States versus Washington, for which, by the way, there was no state contract or comparator.

[00:19:54] Speaker 02:
The other side sort of had—I refer to it as the grand loophole, the idea that as long as the state doesn't use a contractor for something, it's allowed to regulate federal contractors all day long in any way it wants to.

[00:20:07] Speaker 02:
That's not the law.

[00:20:09] Speaker 02:
In United States v. Washington, the Supreme Court just a few years ago explained—and that's the Hanford cleanup case, by way of reminder—it points

[00:20:19] Speaker 02:
It points to contractors for the federal government, and the court notes that it, quote, imposes it, the statute, imposes upon the federal government costs that state or private entities do not bear.

[00:20:30] Speaker 02:
So it doesn't require that there be, that you can eliminate using state contractors, and then you can do to the federal government and its contractors whatever you want.

[00:20:40] Speaker 02:
On that point, that gets to the direct regulation prong, which I think Newsom and Boeing end this case.

[00:20:48] Speaker 02:
And the district court- Well, counsel, let me ask you this.

[00:20:52] Speaker 00:
Assume that this is not a direct regulation case.

[00:20:55] Speaker 00:
Would you concede that to the extent the requirements here mirror requirements for other facilities, that that would be constitutional?

[00:21:03] Speaker 02:
No, they have to be the same.

[00:21:06] Speaker 00:
Right, that was the premise of my question.

[00:21:09] Speaker 00:
OK.

[00:21:09] Speaker 00:
So the extent that the requirements here mirror requirements in other facilities, that would be constitutional.

[00:21:17] Speaker 02:
And just to be sure that I'm following your honest question, you're assuming that somehow that would not be direct regulation?

[00:21:22] Speaker 00:
Well, because there are provisions here that I see apply across the board.

[00:21:26] Speaker 00:
So for example, the provision of nutritious meals and a balanced diet.

[00:21:31] Speaker 00:
Setting aside the question of whether the prisons is the appropriate comparator or these other facilities is the appropriate comparator, when you track the requirements facility to facility, a lot of it is the same.

[00:21:45] Speaker 00:
Now, some of it is different.

[00:21:46] Speaker 00:
Then my next question was going to be, what do we do with those differences?

[00:21:49] Speaker 00:
I ask your opposing council that now ask you the same thing.

[00:21:54] Speaker 00:
But I do want to start with the premise that the extent the requirements are the same,

[00:21:58] Speaker 00:
You don't have a problem with that, right?

[00:22:01] Speaker 02:
No, no.

[00:22:01] Speaker 02:
That has a whole host of other problems, including direct regulation.

[00:22:05] Speaker 00:
So I want to be clear that- My hypothetical, actually, is let's assume this is not a direct regulation case.

[00:22:12] Speaker 00:
We're going to go on discrimination, whether it imposes greater burdens on your client than it does on other facilities.

[00:22:19] Speaker 02:
Well, I suppose that's right.

[00:22:22] Speaker 02:
But we do, I mean, states aren't allowed to directly regulate.

[00:22:24] Speaker 00:
So then to the extent that it isn't, can we just excise the requirements that would impose a greater burden on GO group?

[00:22:31] Speaker 02:
Not greater, different.

[00:22:32] Speaker 02:
But no, I mean, I don't see anything in here that would allow the court to sever those.

[00:22:37] Speaker 02:
I think the whole thing rises and falls together.

[00:22:39] Speaker 02:
I mean, no one has briefed that, so I'm not sure.

[00:22:43] Speaker 02:
I don't want to commit to an answer on that, Your Honor.

[00:22:46] Speaker 02:
we can't just ignore the other half of intergovernmental immunity, or for that matter, preemption, which prevents a state from telling the federal government how to carry out its work.

[00:22:56] Speaker 02:
And that is why I say that this case is Boeing and Newsom in perfect harmony.

[00:23:03] Speaker 02:
And the district court did an interesting thing to avoid Boeing.

[00:23:06] Speaker 02:
It said that

[00:23:08] Speaker 00:
Well, it's been briefed in the extent that that's what we said in U.S.

[00:23:11] Speaker 00:
versus California, right?

[00:23:13] Speaker 00:
To the extent that the requirements duplicate the requirements elsewhere, it's fine.

[00:23:18] Speaker 00:
And if it is in excess of the requirements elsewhere, then it's not okay.

[00:23:22] Speaker 02:
I think, Your Honor, is thinking about the discrimination prong of IGI.

[00:23:26] Speaker 02:
The state cannot tell the federal government how to carry out its federal functions.

[00:23:31] Speaker 02:
So as in Newsom, where the federal function was the selection of

[00:23:35] Speaker 02:
facilities for detention that the ICE deems appropriate.

[00:23:39] Speaker 02:
That's the statutory term, 8 USC 1231 G1.

[00:23:44] Speaker 02:
That is the bedrock.

[00:23:46] Speaker 02:
I mean, if the court reads two cases in this case, please make them Newsom and Boeing, because Newsom explains that- You didn't mention Noizor, did you?

[00:23:55] Speaker 02:
Well, as your honor knows, Nawazar is the subject of a petition for rehearing on Bach.

[00:24:01] Speaker 00:
I'm very familiar with Newsom.

[00:24:03] Speaker 00:
Yes, I know.

[00:24:03] Speaker 00:
It's a masterpiece.

[00:24:05] Speaker 00:
And in Newsom, I think the majority made it very clear that there is considerable room

[00:24:12] Speaker 00:
for states to enforce their generally applicable laws against federal contractors.

[00:24:17] Speaker 00:
And the regulation relating to health and safety is something that's been well recognized, including in Newsom, as within the state's police powers.

[00:24:26] Speaker 00:
So I don't think Newsom is as broad as you would have us accept.

[00:24:30] Speaker 02:
So there is a line of cases, and Newsom acknowledges this line of cases, that relates to generally applicable laws.

[00:24:38] Speaker 02:
And arguably, NOASR is one of these laws that merely increase the cost.

[00:24:43] Speaker 02:
So these are your tax cases.

[00:24:45] Speaker 02:
And Newsom very adroitly distinguishes the tax cases at pages 755 through 56.

[00:24:50] Speaker 02:
Boeing does it at page 839.

[00:24:53] Speaker 02:
Those cases merely increase cost.

[00:24:55] Speaker 02:
And so the courts have said, if it merely increases the cost by having a tax of some sort or perhaps a minimum wage,

[00:25:02] Speaker 02:
then it's OK to regulate the federal government if you're merely increasing their cost.

[00:25:08] Speaker 02:
The other side of that coin, and this is the part of Newsom to which I call the Court's attention, is that the state cannot, let me get the quote here, prohibit ICE from exercising its discretion to arrange for immigration detention

[00:25:24] Speaker 02:
In the privately run facilities, it has deemed appropriate.

[00:25:27] Speaker 02:
And then the court goes on.

[00:25:28] Speaker 02:
That's at page 761.

[00:25:31] Speaker 02:
California would have us hold that intergovernmental immunity never applies to generally applicable state regulation of a federal contractor, even when the regulation would control federal operations.

[00:25:41] Speaker 02:
That's page 758.

[00:25:42] Speaker 02:
That is the most important sentence from this court's precedent for today's case.

[00:25:47] Speaker 02:
News from page 758, because it applies exactly here.

[00:25:51] Speaker 02:
California would have had this court say that as long as it's a neutral law, generally applicable state regulation would be allowed.

[00:26:01] Speaker 02:
And this court rejected it because it would go to the manner in which, not the cost of carrying out federal operations, but the manner in which they're discharged.

[00:26:11] Speaker 02:
HB 1470 regulates the manner in which the federal function is carried out by dictating, for example, everything from HVAC to toiletries to fruits.

[00:26:19] Speaker 02:
And that is offensive to intergovernmental immunity.

[00:26:24] Speaker 02:
So as distinguished from the tax cases, and that's a very important one, the district court, by the way, got off the rails on this by concluding inaccurately that somehow the regulation in Boeing

[00:26:39] Speaker 02:
that governed the contractor's performance had been adopted by Congress, when in fact the statute in Boeing, the Atomic Energy Act, requires the quote unquote safe handling and disposal of nuclear waste.

[00:26:53] Speaker 02:
Then the Atomic Energy Commission, and this is just tracking the INA to ICE, then the agency level promulgates detailed rules, because Congress never adopts something like the PBNDS,

[00:27:05] Speaker 02:
Those rules in turn governed how the contractor would perform.

[00:27:10] Speaker 02:
They are exactly tracking each other.

[00:27:11] Speaker 02:
The state sort of backfilling for the district court says, well, in Boeing, the waste belonged to the federal government.

[00:27:19] Speaker 02:
It was their mess in the first place.

[00:27:22] Speaker 02:
That is analogous to saying that the government is the one who has these detainees that need to be housed and cared for.

[00:27:31] Speaker 02:
GEO doesn't go out and detain people.

[00:27:33] Speaker 02:
GEO just takes people whom the federal government has detained.

[00:27:36] Speaker 02:
And people can have reasonable policy disputes about the wisdom of whom to detain and for how long.

[00:27:41] Speaker 02:
But those decisions are, of course, left to the federal government.

[00:27:46] Speaker 00:
I do want to take time council can I have you briefly address the question of standing on section two.

[00:27:52] Speaker 00:
Sure regulations haven't been enacted yet.

[00:27:54] Speaker 02:
Yes, we don't need to wait for the regulations.

[00:27:56] Speaker 02:
This is, as your honor notes, a pre-enforcement challenge.

[00:28:00] Speaker 02:
The standard under this court's flower world precedent is the, quote unquote, realistic danger of enforcement.

[00:28:07] Speaker 02:
In this case, the state, to their credit, concedes that they're trying to enforce section three, the inspection provision, which, by the way, runs headlong into the PBNDS.

[00:28:16] Speaker 02:
You can see that at ER 670.

[00:28:20] Speaker 02:
T as in Tango.

[00:28:22] Speaker 02:
But they're enforcing the inspection requirement for the purpose of enforcing the substantive provisions.

[00:28:29] Speaker 02:
They adopted this law targeting exactly one facility in the state for the purpose of regulating the NWIPC.

[00:28:37] Speaker 02:
The court doesn't have to put its head in the sand.

[00:28:39] Speaker 02:
I mean, the realistic danger standard, this is not some sort of speculative exercise.

[00:28:43] Speaker 02:
or consider the Supreme Court's decision in Virginia v. American booksellers, where it notes that if a statute is aimed at a particular person, then that person has standing to bring the pre-enforcement challenge.

[00:28:56] Speaker 02:
This is Virginia v. American booksellers.

[00:28:58] Speaker 05:
How do we deal with the following?

[00:29:00] Speaker 05:
We do not yet have regulations promulgated under

[00:29:04] Speaker 05:
Section 2, it seems to me entirely possible that the regulations promulgated when we finally get them may excise from the regulations precisely the differences to which you are objecting.

[00:29:21] Speaker 05:
What do we do with that possibility?

[00:29:23] Speaker 02:
Well, Your Honor, first of all, that is far more speculative than GO being the recipient of an enforcement action.

[00:29:31] Speaker 02:
But if they were to excise those, then I guess it would be a case for potential mootness rather than ripeness.

[00:29:38] Speaker 02:
So they could maybe moot out our controversy, but the controversy is a proper pre-enforcement challenge.

[00:29:44] Speaker 05:
I do want to address- Well, pre-enforcement challenge, but

[00:29:47] Speaker 05:
Somehow, the pre-enforcement challenge works only when you know what the enforcement's going to be, and we don't yet have the regulations.

[00:29:55] Speaker 02:
Well, we have the statute, Your Honor.

[00:29:57] Speaker 02:
I mean, don't sell Section 2 short.

[00:29:58] Speaker 02:
It includes its own raft.

[00:30:00] Speaker 02:
In fact, what we've pointed to in the chart is all from the statute.

[00:30:05] Speaker 02:
It's not from the regulations.

[00:30:07] Speaker 02:
So we have something there.

[00:30:08] Speaker 02:
And we say in the briefs, it would be impossible for them to regulate in a way that didn't run afoul of intergovernmental immunity.

[00:30:16] Speaker 05:
Wait a minute, I'm not sure that's right because your objection on intergovernmental immunity with the comparison is that there are differences and you say it's impossible for them to regulate so that there are no differences?

[00:30:28] Speaker 02:
Well, intergovernmental immunity includes the differences prong, the discrimination prong.

[00:30:32] Speaker 05:
No, I'm talking about differences.

[00:30:33] Speaker 02:
OK.

[00:30:34] Speaker 02:
And then it includes the even more obvious direct regulations.

[00:30:37] Speaker 05:
You see, I disagree with you on that point that it's so obvious.

[00:30:40] Speaker 02:
Oh, interesting.

[00:30:41] Speaker 02:
OK.

[00:30:41] Speaker 02:
Well, if you have a question, I'm happy to field it.

[00:30:43] Speaker 02:
But let me use my waning second to just note that the other side sort of makes these oblique references to a contractual provision that talks about applicable state and federal laws.

[00:30:56] Speaker 02:
The district court rejected this in note 11.

[00:30:59] Speaker 02:
It's at ER 55, citing this court's Gartrell decision, which says that interpreting the exact same term, applicable, in a federal contract, applicable means that it is constitutional.

[00:31:12] Speaker 02:
It cannot be applicable if it's not constitutional.

[00:31:16] Speaker 02:
And so we wind up at the exact same place of answering that question.

[00:31:19] Speaker 05:
I'm sorry to dig into the next time.

[00:31:21] Speaker 05:
I mean, you mean the federal government and GEO cannot contract to do that?

[00:31:30] Speaker 05:
You're saying that it's an invalid contract?

[00:31:32] Speaker 05:
It's unconstitutional contract?

[00:31:34] Speaker 02:
No, no, no.

[00:31:35] Speaker 05:
Because I'm just trying to figure out what the meaning of the contract is.

[00:31:38] Speaker 02:
Right, so to spend just another few seconds, and I don't think that I'm taking the United States' time, but if so, I'll be even quicker about this.

[00:31:46] Speaker 02:
This applicable argument is waived, for one thing.

[00:31:47] Speaker 02:
It shows up for the first time on page 31 of the reply brief.

[00:31:50] Speaker 02:
The district court correctly got rid of it.

[00:31:53] Speaker 02:
It would only apply to the discrimination prong.

[00:31:55] Speaker 02:
And the question of the contract is what the party's intent is.

[00:31:59] Speaker 02:
And maybe Mr. Hinchelwood can address their view.

[00:32:02] Speaker 02:
We obviously don't think that it's a waiver of sovereign immunity, nor could it be.

[00:32:05] Speaker 02:
And please see the Gartrell decision for that.

[00:32:08] Speaker 02:
With that, I'll let the United States take.

[00:32:10] Speaker 04:
Thank you.

[00:32:23] Speaker 03:
Good afternoon, Your Honors, and may it please the Court, Brad Hinchwood for the United States.

[00:32:27] Speaker 03:
The anti-discrimination component of the intergovernmental immunity doctrine forbids singling out federal contractors and those who deal with the federal government for unique burdens not imposed generally applicably on other people under state law.

[00:32:40] Speaker 03:
Here, the state enacted a unique statutory regime that applies only to a federal contractor and can only apply to a federal contractor.

[00:32:48] Speaker 03:
There is no other entity that could be.

[00:32:50] Speaker 05:
And saying that, do you disagree that, with the proposition made by the other side, that a proper comparator is state regulation of, I think we've got a couple of things, private residential facilities and private involuntary civil command.

[00:33:06] Speaker 05:
We're not supposed to compare to those?

[00:33:07] Speaker 05:
Right, your honor.

[00:33:08] Speaker 05:
I think because the states how come we're not supposed to compare to those, right?

[00:33:12] Speaker 03:
So I think just to be clear I think the state's argument moves in a few Steps, I think the last step as you point out is a fallback the state sort of says well if you're gonna do any comparison at all You should do it to and you're saying and I'm asking you you say we're not supposed to compare to them.

[00:33:27] Speaker 05:
Why not?

[00:33:28] Speaker ?:
I

[00:33:28] Speaker 03:
Okay, so we think the district court correctly compared to state jails and prisons.

[00:33:31] Speaker 03:
That's exactly what this court did in California.

[00:33:33] Speaker 05:
That's not my question.

[00:33:34] Speaker 05:
My question is why don't we compare to these that I just listed?

[00:33:37] Speaker 03:
Right, so first, I'll point you first to this court's decision in California where you looked at an inspection regime that applied to private detention facilities and you said this scheme is permissible insofar as it mirrors the scheme

[00:33:49] Speaker 03:
applied to state and local jails and prisons, but is impermissible to the extent it exceeds that scheme and applies unique burdens on these contractors with the federal government.

[00:34:00] Speaker 03:
So I mean, it's exactly the comparison this court drew in California, and it's exactly the comparison that the district court properly recognized here fits with both the statutory scheme that Congress created in envisioning contracting with facilities like this one, and it also compares apples to apples, right?

[00:34:15] Speaker 03:
The types of facilities we're talking about here

[00:34:17] Speaker 03:
are the same types of facilities that one might use for a jail or prison or something of that nature.

[00:34:22] Speaker 03:
The state wants to compare, wants to ask you to ignore what it does for jails and prisons and say, no, no, you should compare this to essentially hospitals or maybe the involuntary treatment facilities or it's sort of unclear.

[00:34:33] Speaker 03:
The state itself doesn't treat all these facilities identically.

[00:34:36] Speaker 05:
We're still at cross purposes.

[00:34:38] Speaker 05:
I don't understand why these are improper comparators.

[00:34:41] Speaker 05:
That is to say, these are private contractors who are

[00:34:46] Speaker 05:
detaining people in a civil facility, and why are they inappropriate comparisons?

[00:34:53] Speaker 03:
I think the district court ran through a series of reasons why these things are different.

[00:34:56] Speaker 03:
So the purposes of the detention are different, the reasons behind the detention are different, the intended effect of the detention is different.

[00:35:05] Speaker 05:
But they're all civil detainees, is that correct?

[00:35:08] Speaker 03:
I mean, I won't claim categorical knowledge of state law.

[00:35:11] Speaker 03:
My understanding from the state's briefs is that they claim these are all, to some extent they are detainees, to some extent they are not.

[00:35:18] Speaker 03:
I understand that some of these folks are there voluntarily in the types of facilities the state is pointing to.

[00:35:22] Speaker 03:
But I think it's also instructive that, you know, again,

[00:35:25] Speaker 03:
When this court made these comparisons in California, it drew exactly that, exactly the analogy the district court did here, because it recognized that we're talking about the same types of facilities.

[00:35:36] Speaker 03:
When it looked at the inspection regime, and you have an inspection regime-related claim here, it didn't say, well, what does California do with respect to hospitals or with respect to group homes for work release or things of that nature?

[00:35:50] Speaker 03:
It said jails and prisons are the relevant comparator, and the state hasn't extended its generally applicable laws

[00:35:55] Speaker 03:
to them in all respects.

[00:35:57] Speaker 03:
It had in some respects, but not all.

[00:35:59] Speaker 05:
And I think that goes back to a fundamental— I'm afraid you still haven't answered my question.

[00:36:02] Speaker 05:
I don't understand why we cannot make that comparison.

[00:36:06] Speaker 03:
Well, Your Honor, I think it's—I think it would be inappropriate to look—to ignore the most

[00:36:13] Speaker 03:
analogous comparator that this court correctly recognized in California itself, which are state jails and prisons, which are, I think, generally understood to be built to similar standards as facilities like these, and ignore that comparator and instead look at other facilities.

[00:36:30] Speaker 03:
And it's not clear to me on what basis we're treating those as apples to apples.

[00:36:33] Speaker 05:
Well, we're treating them as apples to apples because they're all run by contractors rather than run by the state itself.

[00:36:39] Speaker 03:
Well, Your Honor, that's, I don't think, the relevant comparison for this particular analysis when we're talking about the facility itself and how the state can choose to regulate these types of facilities as a matter of discrimination analysis.

[00:36:50] Speaker 03:
I mean, the fact that other facilities have people who live in them and the state may regulate them in different ways, which again, there's no single state law here that governs all congregate living facilities.

[00:37:02] Speaker 03:
They have different regulations for states in prisons, different regulations for- So we're back to the point where you think it all ought to be on the same statute?

[00:37:08] Speaker 03:
Not all in the same statute, Your Honor.

[00:37:10] Speaker 03:
If a state extends its generally applicable laws to a particular federal facility, that's a different question under the discrimination analysis.

[00:37:21] Speaker 03:
It might raise other concerns about direct regulation or preemption, but that's not what the state did here.

[00:37:26] Speaker 03:
It enacted a totally separate statute that by design applies only to GEO.

[00:37:31] Speaker 03:
And even today hasn't told you that things are the same and really makes no effort in its brief to say that it's analogous to what they do for state jails and prisons, which was the compared to this court used in California itself.

[00:37:42] Speaker 03:
So, you know, I think, you know, once you've reached that point, I mean, we've obviously at that point moved beyond the state's arguments that you should, you know, ignore the fact that this

[00:37:53] Speaker 03:
only applies to the federal contractor and should ignore the fact that, you know, and should draw a comparison based on hypothetical contractors who can't exist.

[00:38:01] Speaker 03:
And you've reached that sort of last step of where do we look to draw the right comparison.

[00:38:07] Speaker 04:
At that point... Council, the light's red, meaning you're over your time.

[00:38:12] Speaker 04:
However, you didn't get all your planned five minutes earlier, so there's no problem.

[00:38:22] Speaker 04:
But we should come to an end of your argument so the rebuttal can proceed.

[00:38:27] Speaker 03:
Certainly.

[00:38:28] Speaker 03:
I mean, if there are further questions, I'm happy to answer them.

[00:38:30] Speaker 03:
But otherwise, I think I've covered what I needed to in my five minutes.

[00:38:34] Speaker 04:
OK, thank you very much.

[00:38:36] Speaker 03:
Thank you.

[00:38:36] Speaker 04:
Do you have no questions?

[00:38:43] Speaker 01:
Your Honor, I want to address the question of whether or not to excise excise provisions versus not that may or not be comparable.

[00:38:52] Speaker 01:
The other side suggests that the laws have to be identical.

[00:38:58] Speaker 01:
United States versus California says differently.

[00:39:01] Speaker 01:
What the court should do is follow the United States versus California's treatment of the due process provision of the inspection requirements in United States versus California, which is you should read them the same to the extent there is any discrepancy.

[00:39:14] Speaker 01:
They should be the same as the comparable regulations for congregate care facilities instead of

[00:39:20] Speaker 01:
the apprehension provision of the United States versus California inspection regime, which was excised.

[00:39:26] Speaker 01:
So they should be read the same because they are the same.

[00:39:30] Speaker 01:
I also want to address Your Honor's concerns about the civil penalties, which I think I addressed that their congregate care facilities are subject to civil penalties.

[00:39:37] Speaker 01:
But I also want to make sure that it's clear that there are civil penalties attached to HB 1470 exactly because other congregate care facilities are subject to more onerous requirements.

[00:39:49] Speaker 01:
DOH can rescind the license of those congregate care facilities, and they can no longer do business in the state if they violate health and safety laws.

[00:39:57] Speaker 01:
That doesn't exist here.

[00:40:00] Speaker 01:
To the point about standing, GEO tries to shoehorn the state's inspections under Section 3 as a violation of Section 2.

[00:40:08] Speaker 01:
I would point the court to HB 1470, Section 13, which indicates that each provision is read separately and stands independently.

[00:40:17] Speaker 01:
To the extent the court refers to US v. California and what the proper comparator is, US v. California does not indicate that the proper comparator here is DOC or state-run facilities.

[00:40:29] Speaker 01:
The state law in US v. California only applied to federal facilities.

[00:40:34] Speaker 01:
It only referred to federal detention facilities, whether public or private.

[00:40:38] Speaker 01:
This HB 1470, the state law here, applies to both federal and state contractors.

[00:40:45] Speaker 01:
And the court need not look further than Noiser to confirm it.

[00:40:49] Speaker 01:
Thank you, Your Honor.

[00:40:50] Speaker 04:
Thank you, counsel.

[00:40:53] Speaker 04:
I again want to thank counsel on both sides of this case for your strong argument.

[00:41:06] Speaker 04:
With that, I think the case is now ready for submission.

[00:41:12] Speaker 04:
We will submit the case, and the parties will hear from us in due course.

[00:41:19] Speaker 04:
The court will now adjourn.