Corecivic, Inc v. Governor of New Jersey; Attorney General of New Jersey

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 23-2598
_______________
CORECIVIC, INC.
v.
GOVERNOR OF NEW JERSEY; ATTORNEY GENERAL
OF NEW JERSEY,
Appellants
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3:23-cv-00967)
District Judge: Honorable Robert Kirsch
_______________
Argued: May 1, 2025
Before: KRAUSE, BIBAS, and AMBRO, Circuit Judges
(Filed: July 22, 2025)

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Jeremy Feigenbaum [ARGUED]
Nathaniel I. Levy
Michael L. Zuckerman
NEW JERSEY ATTORNEY GENERAL’S OFFICE
25 Market Street
Richard J. Hughes Justice Complex
P.O. Box 112
Trenton, NJ 08625
Counsel for Appellants
Alex Hemmer
ILLINOIS ATTORNEY GENERAL’S OFFICE
SOLICITOR GENERAL’S OFFICE
115 S. LaSalle Street, 23rd Floor
Chicago, IL 60603
Counsel for Amici States of Illinois, Colorado, Connecti-
cut, Delaware, Maine, Maryland, Massachusetts, Michi-
gan, Minnesota, Nevada, New York, Oregon, and Washing-
ton, and the District of Columbia in Support of Appellants
Farrin R. Anello
Molly K.C. Linhorst
AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY
P.O. Box 32159
Newark, NJ 07102

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Counsel for Amici AAPI New Jersey, American Civil Lib-
erties Union of New Jersey, American Friends Service
Committee, Bayard Rustin Center for Social Justice, Bend
the Arc Jewish Action, Deportation & Immigration Re-
sponse Equipo, Detention Watch Network, El Pueblo
Unido of Atlantic City y Pueblos Cercanos, Faith in New
Jersey, First Friends of New Jersey and New York, Latina
Civic Action, Latino Action Network, Latino Coalition of
New Jersey, LatinoJustice PRLDEF, Law Enforcement Ac-
tion Partnership, Lazos America Unida, Make the Road
New Jersey, New Jersey Alliance for Immigrant Justice,
New Jersey Consortium for Immigrant Children, New Jer-
sey Parents Caucus, Inc., New Jersey Policy Perspective,
New Labor, Northern New Jersey Sanctuary Coalition, Re-
formed Church of Highland Park, Truah Rabbinic Call for
Human Rights, Unitarian Univeralist FaithAction New
Jersey, Volunteer Lawyers for Justice, and Wind of the
Spirit Immigrant Resource Center in Support of Appellants
David N. Cinotti
Dominique Kilmartin
Brendan M. Walsh
PASHMAN STEIN WALDER HAYDEN
21 Main Street
Court Plaza South, Suite 200
Hackensack, NJ 07601
Counsel for Amicus Pax Christi USA in Support of Appellant
David J. Goldsmith
Thomas A. Kissane

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Bradley D. Simon [ARGUED]
SCHLAM STONE & DOLAN
26 Broadway, 19th Floor
New York, NY 10004
Counsel for Appellee
McKaye L. Neumeister [ARGUED]
UNITED STATES DEPARTMENT OF JUSTICE
CIVIL DIVISION, APPELLATE SECTION
950 Pennsylvania Avenue NW, Room 7231
Washington, DC 20530
Counsel for Amicus United States in Support of Appellee
John M. Miano
IMMIGRATION REFORM LAW INSTITUTE
103 Park Avenue, Suite E101
Summit, NJ 07901
Counsel for Amicus Immigration Reform Law Institute in
Support of Appellee
______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
Just as the federal government cannot control a state, so too
a state cannot control the federal government. Each is sover-
eign. Each is “protected from incursion by the other.” U.S.
Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Ken-
nedy, J., concurring). But sometimes their authorities overlap.
In such cases, some state rules may legitimately burden the

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federal government. That is a “normal incident” in a system
with dual sovereigns. North Dakota v. United States, 495 U.S.
423, 435 (1990) (plurality) (cleaned up). Sometimes, though, a
state goes further, interfering directly with federal policy or
“destroy[ing]” it through “hostile legislation.” McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316, 400–01, 430 (1819). And
when it crosses that line, it violates the Constitution.
New Jersey is on the wrong side of that line. It dislikes
some of the federal government’s immigration tools, so it
passed a law with the “intent” to forbid new contracts for civil
immigration detention. N.J. Stat. Ann. § 30:4-8.15(d). That law
interferes with the federal government’s core power to enforce
immigration laws. Its construction is admittedly clever: It seeks
to sidestep the usual two-prong test that courts use to enforce
the “bedrock principle” that states may not regulate their fed-
eral counterpart. North Dakota, 495 U.S. at 448 (Scalia, J.,
concurring in the judgment). Still, we see the law for what “it
really is”: a direct regulation on the federal government.
McCulloch, 17 U.S. at 431. Because New Jersey’s law violates
intergovernmental immunity, we will affirm the District
Court’s summary judgment for the contractor.
I. NEW JERSEY INTENDED TO BAN
IMMIGRATION DETENTION
Since 1996, CoreCivic has contracted with the federal gov-
ernment to run a private immigration-detention center in Eliz-
abeth, New Jersey. CoreCivic planned to renew its federal con-
tract in 2023, but New Jersey passed a law (AB 5207) forbid-
ding it to do so.

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Though New Jersey does not want private immigration-
detention centers, the government often relies on them. U.S.
Immigration and Customs Enforcement (ICE) does not build
its own lockups, and it does not operate them alone. Instead, it
contracts with private companies or local governments to help
run them. See 48 C.F.R. § 3017.204-90; 8 C.F.R. § 235.3(e)
(both providing for federal contracting to hold immigrants).
This approach gives ICE the flexibility it needs to increase or
decrease capacity as the number of deportable aliens fluctuates.
Citing its duty to protect human rights and health, New Jer-
sey passed AB 5207 with the express “intent … to prevent new,
expanded, or renewed agreements to detain people for civil
immigration purposes.” N.J. Stat. Ann. § 30:4-8:15(d). The
law bans the state, its local governments, and private parties
from making, renewing, or extending any contract to detain
people for civil immigration violations. § 30:4-8.16(b)(1)–(2).
CoreCivic’s detention-center contract fell prey to that ban.
So CoreCivic sued New Jersey, claiming that AB 5207 violates
the Supremacy Clause because it (1) violates intergovernmental
immunity and (2) is preempted by federal law. Soon after, the
United States filed a statement of interest in the case. See 28
U.S.C. § 517. That is no surprise. Federal law gives the federal
government discretion to find “appropriate places of detention
for aliens detained pending removal.” 8 U.S.C. § 1231(g)(1).
Exercising this discretion, the government has come to rely
on CoreCivic’s detention center as a “mission critical location
for [federal government] and ICE operations nationwide.”
App. 100 ¶ 8. The center is the only one available in New Jersey
“capable of meeting ICE’s requirements,” and its proximity to

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JFK and Newark Airports makes it “crucial to effect[ing] remov-
als from field offices nationwide.” App. 97 ¶ 28, 100 ¶ 9. With-
out it, the government would have to take detainees to a center
in the middle of Pennsylvania more than 250 miles (and a four-
hour drive) away. Driving that far would tie up officers for “at
least a full day.” App. 100 ¶ 10. It would also gum up ICE’s
flexibility to grow or shrink capacity as the levels and locations
of immigration shift. It could even force ICE to release aliens
with violent criminal records. So the ban would effectively
“cripple [ICE’s] law-enforcement operations in New Jersey
and the surrounding region.” App. 99–100 ¶ 7.
Based on these facts and concerns, the District Court
granted summary judgment for CoreCivic. It thought that
AB 5207 “evades easy classification under a particular branch
of the Supreme Court’s Supremacy Clause jurisprudence.”
App. 18. Still, it saw that the law takes away the federal gov-
ernment’s choice of how to detain aliens, a restriction that it
held violates intergovernmental immunity and is preempted by
federal law. New Jersey now appeals. We review the District
Court’s ruling de novo. Aleynikov v. Goldman Sachs Grp., Inc.,
765 F.3d 350, 357 & n.2 (3d Cir. 2014).
II. THE LAW VIOLATES INTERGOVERNMENTAL IMMUNITY
BY DIRECTLY REGULATING THE FEDERAL GOVERNMENT
Our Constitution created a legal system “establishing two
orders of government, each with its own direct relationship, its
own privity, its own set of mutual rights and obligations to the
people who sustain it and are governed by it.” Thornton, 514
U.S. at 838 (Kennedy, J., concurring). But when those orders
conflict, the Supremacy Clause makes federal law “the

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supreme Law of the Land.” U.S. Const. art. VI, cl. 2. States
remain sovereign, but they are “subordinate to, and may be
controlled by the constitution of the United States.” McCul-
loch, 17 U.S. at 427. From this text spring two doctrines: inter-
governmental immunity and preemption. First, the immunity
doctrine shields the federal government from some state regu-
lations. Second, Congress can extend that immunity further by
passing a federal law to preempt state laws. North Dakota, 495
U.S. at 439–40 (plurality). CoreCivic raises both Supremacy
Clause doctrines, but we need not reach preemption. Even
without preemptive legislation, the law violates intergovern-
mental immunity. Though New Jersey advocates forcefully
and ably for its position, its law directly regulates the federal
government.
A. Intergovernmental immunity shields the federal
government from direct or discriminatory state
regulation
Because federal law is supreme, “there is a plain repug-
nance” in letting states “interfer[e] with or control[ ] the oper-
ations of the Federal Government.” McCulloch, 17 U.S. at 431;
United States v. Washington, 596 U.S. 832, 838 (2022). As
McCulloch recognized, “the very essence of supremacy” empow-
ers the federal government to “remove all obstacles to its action
within its own sphere … [and] exempt its own operations from
[state] influence.” 17 U.S. at 427.
To enforce this core principle, known as intergovernmental
immunity, modern courts apply a two-pronged test: States can-
not “[1] regulate the United States [government] directly or
[2] discriminate against” it or its contractors. Washington, 596

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U.S. at 838 (cleaned up). A state law regulates the United
States directly when it “places [either] a prohibition” or man-
date on the federal government. Hancock v. Train, 426 U.S.
167, 180 (1976); see also Arizona v. California, 283 U.S. 423,
451 (1931) (“The United States may perform its functions
without conforming to the police regulations of a state.”).
Meanwhile, a state law discriminates against the federal gov-
ernment when it “treats similarly situated state and federal
[actors] differently” in a way that cannot be explained by “sig-
nificant differences[s]” between the two. Dawson v. Steager,
586 U.S. 171, 177 (2019) (internal quotation marks omitted).
A state law that violates either prong is invalid unless Congress
has “clearly and unambiguously authorized” it. Washington,
596 U.S. at 840 (cleaned up).
Congress has not authorized state regulations like AB 5207.
But New Jersey claims that the law survives both prongs. It
says the text of the law does not apply to the federal govern-
ment directly. And New Jersey says it does not discriminate
against the federal government because it ties its own hands in
the same way: Its own Department of Corrections cannot hire
private companies to house criminal defendants or convicts.
But we need not decide whether New Jersey is right that it is
a relevant comparator to the federal government or that it in-
deed imposes the same restrictions on itself. Either way, this
law plainly violates the direct-regulation prong.

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B. Some laws directly regulate the federal government
functionally, even if not literally
AB 5207 falls because it directly regulates the federal gov-
ernment. But to get there, we must first sketch out the contours
of the direct-regulation prong.
New Jersey contends that a law regulates the federal gov-
ernment directly only if the law’s text applies to it. Applying
that test, New Jersey claims that it has not directly barred the
federal government from doing anything. The text of AB 5207
applies only to the state, its municipalities, and private contrac-
tors (the sellers of the contracting service), not to the federal
government (the buyer). It just so happens that AB 5207 has
the exact same effect as a state law that bars the federal gov-
ernment from contracting for private immigration services. But
New Jersey says this does not matter. The direct-regulation
prong does not concern itself with effects, the state says, even
if functionally AB 5207 directly restricts federal power or sub-
stantially interferes with federal operations. But it is wrong.
AB 5207 carries the same sting as a law whose text applies
expressly to the federal government. And the direct-regulation
prong accommodates that functionalist reading of what is really
going on here.
Intergovernmental immunity is not a formalist doctrine. In
gauging intergovernmental immunity, the Court has long
instructed us to “look through form and behind labels to sub-
stance.” City of Detroit v. Murray Corp. of Am., 355 U.S. 489,
492 (1958). We must probe the “purpose or self-evident oper-
ation of a statute” to see if it is used to evade the limits on im-
munity “by indirectly achieving the same result.” Miller v. City

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of Milwaukee, 272 U.S. 713, 715 (1927). “[W]hat cannot be
done directly cannot be done indirectly. The Constitution deals
with substance, not shadows.” Students for Fair Admissions,
Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181,
230 (2023) (alteration in original) (quoting Cummings v. Mis-
souri, 71 U.S. (4 Wall.) 277, 325 (1867)).
So the Court has long held that, just as states cannot regu-
late the federal government itself, they cannot regulate private
parties in a way that severely undercuts a federal function.
Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 738, 786–89, 866–
67 (1824) (noting that states cannot “control” federal opera-
tions by regulating its contractors); Crandall v. Nevada, 73
U.S. (6 Wall.) 35, 44–45 (1867) (explaining that the Court has
“uniformly denied” state regulations that “affect[ ] the func-
tions of the Federal government” or “impede or embarrass the
constitutional operations of that government”); Union Pac. R.
v. Peniston, 85 U.S. (18 Wall.) 5, 30 (1873) (states may not
impose regulations “the direct effect of which shall be to hinder
the exercise of any powers which belong to the National gov-
ernment”).
That anti-interference throughline pervades the caselaw to
this day. Smith v. Davis, 323 U.S. 111, 116 (1944) (upholding
nondiscriminatory tax on federal contractor’s profits because
there was “no basis for assuming that contractors will be any
less willing to enter into construction contracts with the United
States,” and the tax was not “likely to affect or impair in any
way their ability to discharge their duties efficiently”); Graves
v. New York ex rel. O’Keefe, 306 U.S. 466, 481 (1939) (holding
that states may not “impose a burden on the national govern-
ment tantamount to an interference … with the … performance

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of its functions”); Okla. Tax Comm’n v. Tex. Co., 336 U.S. 342,
364 (1949) (explaining that state regulations on third parties
that “actual[ly] interfere[e] [with] or [have] destructive effects
upon the performance of obligations to or work for the govern-
ment” violate intergovernmental immunity); City of Detroit,
355 U.S. at 495 (upholding non-discriminatory state regulation
on federal contractors because there was “no crippling obstruc-
tion of any of the Government’s functions [and] no sinister
effort to hamstring its power”); United States v. Fresno
County, 429 U.S. 452, 463–64, 463 n.11 (1977) (upholding
neutral state tax on federal employees because it did not
“threaten[ ] to obstruct or burden a federal function,” for instance
“by making the Federal Government unable to hire anyone”);
United States v. New Mexico, 455 U.S. 720, 735 & n.11 (1977)
(upholding neutral tax on federal contractors but noting that “of
course … state taxes on contractors are constitutionally invalid
if they … substantially interfere with [the federal govern-
ment’s] activities”); Davis v. Mich. Dep’t of Treasury, 489
U.S. 803, 814 (1989) (noting that intergovernmental immunity
“protect[s] each sovereign’s governmental operations from un-
due interference by the other”); Washington, 596 U.S. at 838
(reasoning that states may not “interfer[e] with or control[ ] the
operations of the Federal Government”).
Still, New Jersey contends that modern intergovernmental-
immunity doctrine long ago jettisoned this functional, effects-
based test. Our dissenting colleague likewise insists that the
many Supreme Court cases embracing a functional view of
direct regulation have been “rejected over and over.” Dissent
at 12. But they misread the arc of the doctrine. True, there was
a time when the Supreme Court stretched the doctrine to bar

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state regulation of third parties that imposed even an indirect
or conjectural financial burden on the federal government. See,
e.g., New Mexico, 455 U.S. at 731 (describing mid-nineteenth-
century cases striking down neutral state taxes on federal employ-
ees, contractors, and private parties operating on federal land).
Also true, the Court then corrected course, recognizing that
such an “expansive” doctrine was unmoored “both from [its]
constitutional foundations … and from the actual workings of
our federalism.” Id. (internal quotation marks omitted). So it
pared the doctrine back. See, e.g., James v. Dravo Contracting
Co., 302 U.S. 134, 161 (1937) (upholding non-discriminatory
tax as applied to federal contractor because it did “not interfere
in any substantial way with the performance of federal func-
tions”); Penn Dairies, Inc. v. Milk Control Comm’n, 318 U.S.
261, 269–70 (1943) (upholding milk price controls as applied
to a federal milk supplier because even though the regulation
“increase[d] the price which the government must pay for milk,”
it “impose[d] no prohibition on the national government”).
Yet even as the Court narrowed the doctrine’s applicability
to third parties, it never eroded its anti-interference core. Wash-
ington, 596 U.S. at 838 (describing intergovernmental immun-
ity as “prohibiting States from interfering with or controlling
the operations of the Federal Government”). As the doctrine
stands today, nondiscriminatory state laws are no longer un-
constitutional just because they may remotely affect federal
functions. North Dakota, 495 U.S. at 435 (plurality) (summa-
rizing how the doctrine has coalesced around this principle).
But state laws regulating private parties still violate intergov-
ernmental immunity if they “impose a burden on the national

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government tantamount to an interference … with the … per-
formance of its functions.” Graves, 306 U.S. at 481.
In short, the modern doctrine distinguishes between laws
that merely impose an incidental economic burden on the fed-
eral government and those that subvert federal operations. The
latter trigger immunity; the former do not. See Taber v. Indian
Territory Illuminating Oil Co., 300 U.S. 1, 3–4 (1937) (distin-
guishing a “nondiscriminatory” regulation “where there is only
a remote, if any, influence upon the exercise of governmental
functions” from “one which imposes a direct burden upon the
exertion of governmental powers”); Pub. Utils. Comm’n v.
United States, 355 U.S. 534, 543–44 (1958) (collecting cases
and distinguishing between “nondiscriminatory state taxes on
activities of contractors … who do business for the United
States, as their impact at most is to increase the costs of the
operation” and state laws that “place[ ] a prohibition on the
Federal Government” by regulating third-party activity); see
also GEO Grp., Inc. v. Newsom, 50 F.4th 745, 755 (9th Cir.
2022) (en banc) (noting this material distinction).
Still, the dissent and New Jersey insist that the Supreme
Court has since collapsed this distinction between mere bur-
dens and substantial subversion. New Jersey, for its part, leans
on Washington, which it claims embraced a hyper-formalist
version of direct regulation. But Washington was a discrimina-
tion case, so it did not consider, and had no occasion to con-
sider, the bounds of direct regulation. 596 U.S. at 839. And we
presume that the Court does not “overturn, or so dramatically
limit, earlier authority sub silentio.” Shalala v. Ill. Council on
Long Term Care, Inc., 529 U.S. 1, 18 (2000).

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New Jersey and the dissent also point to Penn Dairies for
the same point but misread its holding. That case rejected a
challenge to Pennsylvania’s neutral price controls on milk
because the law “at most … increase[d] the costs of [federal]
operation[s]”; it “impose[d] no prohibition” on the federal gov-
ernment. Pub. Utils. Comm’n, 355 U.S. at 543–44 (quoting
Penn Dairies, 318 U.S. at 270). So Penn Dairies said nothing
about the fate of regulations that functionally bar the federal
government from doing something.
But the Supreme Court has since spoken on that issue. It
has explained that the Supremacy Clause does not “bar[ ] all
state regulation which may touch the activities of the Federal
Government.” Hancock, 426 U.S. at 179 (citing Penn Dairies,
318 U.S. at 269–70). But it does draw a line at those that
“place[ ] a prohibition on the Federal Government.” Id. (quot-
ing Pub. Utils. Comm’n, 355 U.S. at 544); see McHenry
County v. Raoul, 44 F.4th 581, 592 (7th Cir. 2022) (drawing
this same distinction). And as we discuss in more detail below,
it has applied that rule to hold that certain state regulations on
federal contractors can effectively “place[ ] a prohibition on the
Federal Government,” thus violating intergovernmental immun-
ity. Pub. Utils. Comm’n, 355 U.S. at 544.
Without Penn Dairies, New Jersey and the dissent are left
to lean on the Supreme Court’s plurality opinion in North Da-
kota. They claim that it persuasively rejected an approach to
intergovernmental immunity focused on substantial interfer-
ence and control. Yet “only the result of North Dakota is bind-
ing.” GEO Grp., 50 F.4th at 759. And even taking the plural-
ity’s reasoning on its own terms, the case is inapt. North Da-
kota addressed whether state reporting and labeling

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requirements for out-of-state liquor suppliers could be applied
to those supplying liquor to a military base. Crucially, those
regulations did “not restrict the parties from whom the Gov-
ernment may purchase liquor or its ability to engage in com-
petitive bidding,” nor did they “require the military to submit
to state control or to purchase alcoholic beverage from suppli-
ers within the State or prescribed by the State.” 495 U.S. at 441,
443. Instead, those regulations “at worst raise[d] the costs of
selling to the military,” thereby indirectly making it slightly
“more costly for the Government to do its business.” Id. at
434, 441.
True, as our dissenting colleague points out, these descrip-
tions of the law’s minimal burden on the federal government
come from the plurality’s preemption analysis. But that makes
them no less factually accurate. And those facts informed the
intergovernmental-immunity question as much as the preemp-
tion one. The plurality concluded that, like the price controls at
issue in Penn Dairies, North Dakota’s restrictions “regulate[d]
federal activity [only] in the sense that they ma[d]e it more
costly for the Government to do its business.” Id. at 434. Con-
sistent with Penn Dairies, it found that mere economic burden
insufficient to trigger intergovernmental immunity. Id. at 437.
To be sure, the plurality was also wary of adopting an approach
that would invalidate “every state regulation that in any way
touched federal activity,” as the dissent points out. Id. at 437
n.8. But it simply did not have occasion to pass on the validity
of state laws, like New Jersey’s, that do much more than touch
federal activity. So it did not foreclose finding direct regulation
when a novel state law, like New Jersey’s, effectively “oper-
ate[s]” on or “direct[ly] interfere[s]” with a core function of the

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federal government. Id. at 437. Plus, North Dakota reiterated
that we must take “a functional approach to claims of govern-
mental immunity.” Id. at 435.
So even after North Dakota, state regulations “on contrac-
tors are constitutionally invalid” under the intergovernmental-
immunity doctrine “if they … substantially interfere with [the
federal government’s] activities.” HMO of N.J., Inc. v. Whit-
man, 72 F.3d 1123, 1132 (3d Cir. 1995) (quoting New Mexico,
455 U.S. at 735 n.11). Though the edges of the immunity doc-
trine have “evolved,” its anti-interference and anti-control core
has stayed solid. Washington, 596 U.S. at 838.
C. AB 5207 directly regulates the federal government
by banning contracts that only the federal govern-
ment can make
Applying the functional approach that intergovernmental
immunity demands, this law directly regulates the federal gov-
ernment. True, its text does not apply to the federal govern-
ment. But we can easily see the law for what it really is: a reg-
ulation “laid upon the contract of the government.” Dravo
Contracting, 302 U.S. at 149. The law prevents the federal
government from choosing how and through whom it will
carry out a core federal function. It does so by banning private
parties from selling immigration detention when “the only
entity in the business, so to speak, of [buying private] immi-
gration det[ention] is the federal government.” United States v.
King County, 122 F.4th 740, 757 (9th Cir. 2024) (striking down
a ban on deportation flights as violating both prongs of inter-
governmental immunity). Only the federal government has the
power to decide whether, how, and why to hold aliens for

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violating immigration law. It alone has the power to make these
contracts in the first place. See DeCanas v. Bica, 424 U.S. 351,
354–55 (1976); see also Arizona v. United States, 567 U.S.
387, 394 (2012) (describing the federal government’s immi-
gration power as “broad [and] undoubted”). So this ban is in
substance a direct regulation; it destroys the federal govern-
ment’s marketplace. Cf. United States v. Town of Windsor, 765
F.2d 16, 19 (2d Cir. 1985) (“Enforcement of the substance of
the permit requirement against the contractors would have the
same effect as direct enforcement against the Government.”).
The Supreme Court has relied on this same rationale to
strike down other regulations of federal contractors that in sub-
stance regulate the federal government. For instance, it invali-
dated a state law that required private common carriers to get
state approval before charging the federal government reduced
rates. Pub. Utils. Comm’n, 355 U.S. at 535, 544. Technically,
the law operated only on contractors and treated the federal
government favorably compared to all other buyers. But the
Court saw it for what it really was: not just a neutral regulation
that affected the federal government but a “prohibition on the
Federal Government.” Id. at 544. That was a “clear” Suprem-
acy Clause violation. Id.
Likewise, the Supreme Court has invalidated state laws that
bar federal contractors from working within the state unless
they meet certain qualifications “in addition to those that the
[Federal] Government has pronounced sufficient.” Johnson v.
Maryland, 254 U.S. 51, 57 (1920); see, e.g., Leslie Miller, Inc.
v. Arkansas, 352 U.S. 187, 188–90 (1956) (per curiam) (inval-
idating a state law that imposed extra licensing requirements
on federal defense contractor on both immunity and

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preemption grounds); see also United States v. Virginia, 139
F.3d 984, 987 (4th Cir. 1998) (barring the application of state
“licensing and registration requirements to private investiga-
tors working solely for the FBI”). Though such laws techni-
cally apply only to the federal contractor, the Court has treated
them functionally as bans on the federal government because
they restrict its ability to hire whom it chooses.
New Jersey’s law is more intrusive than such state licensing
requirements and the state law that was struck down in Public
Utilities Commission. Those laws just required state approval
before a federal contractor could do business with the federal
government; New Jersey’s law bans such contracts altogether.
So it has the veneer of regulating contractors. But really, it
directly regulates the federal government by telling it how to
carry out a core function. It is a direct regulation in everything
but name. See, e.g., Boeing Co. v. Movassaghi, 768 F.3d 832,
840 (9th Cir. 2014) (holding that a state law that “mandates the
ways in which [a federal contractor] renders services that the
federal government hired [them] to perform” is an improper
direct regulation of the federal government because it effec-
tively regulates the “terms of [the] federal contract itself”).
New Jersey and the dissent try to distinguish Public Utili-
ties Commission and the state-licensing case Leslie Miller as
turning on preemption, not intergovernmental immunity. Dis-
sent at 12. True, those cases noted “conflicts between federal
and state law.” GEO Grp., 50 F.4th at 760. But they also “un-
doubtedly drew on principles of intergovernmental immunity.”
Id. (noting Public Utilities Commission’s reliance on McCul-
loch and other intergovernmental immunity cases); see also
United States v. City of Philadelphia, 798 F.2d 81, 89 (3d Cir.

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20
1986) (describing Leslie Miller and Public Utilities Commis-
sion as “involving questions of governmental immunity”).
Prominent constitutional law scholars agree with this reading.
See, e.g., Laurence Tribe, American Constitutional Law 393 &
nn.11–12 (1978) (listing Public Utilities Commission and
Leslie Miller as intergovernmental-immunity cases); Laurence
H. Tribe, Intergovernmental Immunities in Litigation, Taxa-
tion, and Regulation: Separation of Powers Issues in Contro-
versies About Federalism, 89 Harv. L. Rev. 682, 702 & nn.91–
92 (1976) (same); Gerald Gunther, Constitutional Law 309
(10th ed. 1991) (treating Leslie Miller as intergovernmental-
immunity case).
The Ninth Circuit likewise relied on both cases to strike
down a state ban on private detention contracts on intergovern-
mental-immunity grounds. GEO Grp., 50 F.4th at 752, 757–
58; cf. McHenry, 44 F.4th at 593 (upholding law in which state
refused to detain immigrants on federal government’s behalf—
but which left “the federal government … free to … contract
with private parties” for detention). We thus align ourselves
with our sister circuit in adopting this approach.
D. AB 5207 also directly regulates the federal govern-
ment by substantially interfering with a core federal
function
We could stop there. But the law directly regulates the fed-
eral government twice over by substantially interfering with its
operations. Though the Supreme Court has not had to strike
down a state law on these grounds recently, it has noted that
some restrictions on federal contractors may violate intergov-
ernmental immunity because they “substantially interfere

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21
with” or control federal functions. New Mexico, 455 U.S. at
735 & n.11; see Fresno County, 429 U.S. at 463 n.11 (noting
that a state tax or regulation that “destroy[s] the federal func-
tion” would violate intergovernmental immunity). Indeed, it
has implied that courts should treat such laws as regulating the
federal government directly. See Goodyear Atomic Corp. v.
Miller, 486 U.S. 174, 181 (1988) (explaining that “the federal
function must be left free of … state regulation” even when
“the federal function is carried out by a private contractor”
(cleaned up)); Fresno County, 429 U.S. at 460, 464 (conclud-
ing that a non-discriminatory tax on federal employees did not
violate intergovernmental immunity because it did not
“threaten[ ] to obstruct or burden a federal function” and at
most “impose[d] an economic burden”); Taber, 300 U.S. at 3
(noting that the degree of “influence upon the exercise of gov-
ernmental functions” is relevant to this inquiry).
For instance, in Public Utilities Commission, the Court re-
lied on such reasoning to explain why a state law violated in-
tergovernmental immunity. The law barred federal officials
from exercising their “discretion” to hire shipping contractors
without state approval. 355 U.S. at 543. That restriction would
have “delay[ed] … shipment[s]”, thus “seriously hamper[ing]
or disrupt[ing] the military mission[s]” for which the ship-
ments were made. Id. at 545 (internal quotation marks omit-
ted). And if every state enacted similar restrictions, they would
cripple national policy. Id. at 546. As one military officer tes-
tified in that case: “We would find ourselves in an administra-
tive morass out of which we would never fight our way, we
would never win the war.” Id. (cleaned up).

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22
AB 5207 suffers the same flaw. Federal law gives federal
officials discretion to contract for immigration detention.
8 U.S.C. § 1231(g); 48 C.F.R. § 3017.204-90; 8 C.F.R. § 235.3.
New Jersey’s law destroys that discretion. By barring all con-
tractors from the market, it substantially interferes with federal
immigration policy. It would shutter CoreCivic’s “mission crit-
ical” detention center, undermining ICE operations “nation-
wide.” App. 100 ¶ 8. ICE would have to tie up time and money
building and running lockups itself, change its operations, and
risk compromising national security. And if every state enacted
such bans, they would “destroy the federal function.” Fresno
County, 429 U.S. at 463 n.11.
In response, New Jersey tries to frame its law’s effect as
just a burden, not a ban. The federal government, it stresses,
can still buy or lease its own detention centers. But that response
fails. Unlike a broad-based tax or workplace-safety rule, this
law altogether bans a type of contract, and it does so in a market
that exclusively serves a federal power. The Founding genera-
tion “surely … did not intend” for federal operations and the
exercise of federal powers to “depend upon the discretion of
the state governments.” McCulloch, 17 U.S. at 362. Although
the reach of intergovernmental immunity has fluctuated over
time, that core principle has remained steady from McCulloch
to the present day.
*****
At bottom, this law is an “effort to hamstring [the federal
government’s immigration] power,” making it as hard as pos-
sible for it to hold aliens in New Jersey. City of Detroit, 355
U.S. at 495. That is a big step down a slippery slope. If we

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23
accepted New Jersey’s logic, consider what else states might
be able to do. As New Jersey conceded at oral argument, under
its logic, all fifty states could pass laws banning federal con-
tractors from building weapons for the federal military. Such
bans would cripple national defense. Cf. Osborn, 22 U.S. at 867
(“Can a contractor for supplying a military post with provi-
sions, be restrained from making purchases within any State,
or from transporting the provisions to the place at which the
troops were stationed? or could he be fined or taxed for doing
so? We have not yet heard these questions answered in the
affirmative.”). Even a patchwork of such state laws “would
defeat all the ends of government.” McCulloch, 17 U.S. at 432.
States may not do that. Crandall, 73 U.S. at 46. Though “[t]he
Framers split the atom of sovereignty,” they also put the Su-
premacy Clause at the constitutional nucleus, shielding federal
power from disruptive state collision. Thornton, 514 U.S. at
838 (Kennedy, J., concurring).
E. New Jersey’s two remaining counterarguments fail
Resisting the conclusion that the law directly regulates the
federal government, New Jersey replies in two ways. Neither
persuades.
First, New Jersey and the dissent insist that federal contrac-
tors’ immunity is “narrow” and cannot be expanded unless
Congress chooses to do so. New Mexico, 455 U.S. at 737. Because
Congress could preempt the New Jersey law if it wanted to,
they argue that we should stay our hands. We agree that
preemption lets Congress “confer immunity from state regula-
tion on Government suppliers beyond that conferred by the
Constitution alone.” Dissent at 15 (quoting North Dakota, 495

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24
U.S. at 439). But a statute preempting New Jersey’s law is “un-
necessary” here; the Supremacy Clause itself invalidates state
regulations of contractors that “substantially interfere with” the
Federal Government’s activities. Whitman, 72 F.3d at 1132.
New Jersey’s logic would defang the direct-regulation prong
of intergovernmental immunity and collapse intergovernmen-
tal immunity into the preemption doctrine. Yet intergovern-
mental immunity has independent bite, and courts must apply
it to referee “clashing sovereignty.” McCulloch, 17 U.S. at 430.
To be sure, CoreCivic is asserting that immunity on the fed-
eral government’s behalf. But private parties are protected by
intergovernmental immunity when the state law substantially
interferes with their ability to carry out their work on behalf of
the government. Okla. Tax Comm’n, 336 U.S. at 364. And both
the Supreme Court and our sister circuit have let contractors
assert this immunity. See Dravo Contracting, 302 U.S. at 149
(considering intergovernmental-immunity challenge brought
by federal contractor); Boeing, 768 F.3d at 839–40 (holding
that a state law binding a private contractor “directly interferes
with the functions of the federal government” and so “violates
intergovernmental immunity”). What is more, the federal gov-
ernment is here as a friend of the court, agreeing with Core-
Civic that New Jersey’s law will hobble federal immigration
enforcement.
Second, New Jersey protests that a ruling against it would
open the door to far more claims of immunity. But our holding
is narrow. We address only a state ban on contracting in a mar-
ket where the federal government is the only available coun-
terparty for services implementing a core federal power. Reg-
ulations that merely burden contractors without substantially

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25
interfering with the federal government’s operations, or those
that impose neutral conditions on contracts rather than bans,
may pose different intergovernmental-immunity questions.
See, e.g., Nwauzor v. GEO Grp., Inc., 127 F.4th 750, 756–67,
771 (9th Cir. 2025) (rejecting intergovernmental-immunity
challenge to applying state minimum-wage law to inmates at
a private immigration-detention center). We leave such cases
open.
* * * * *
“[T]he National Government is, and must be, controlled by
the people without collateral interference by the States.”
Thornton, 514 U.S. at 841 (Kennedy, J., concurring). Because
New Jersey knew that it could not openly bar the federal gov-
ernment from contracting to detain immigrants, it instead elim-
inated everyone with whom the federal government might con-
tract within its borders. It asks us not to notice the federal ele-
phant in the room. Yet we can see the law for what it really is,
“claiming the authority to dictate the manner in which the fed-
eral [immigration] function is carried out.” Goodyear Atomic,
486 U.S. at 181 n.3. Letting states do that would “chang[e]
totally the character of” our federal system by “transfer[ring]
the supremacy, in fact, to the states.” McCulloch, 17 U.S. at
432. The U.S. Constitution is supreme, and intergovernmental
immunity protects that supremacy. New Jersey’s law directly
regulates the federal government, so it is unconstitutional as
applied to CoreCivic. We will affirm.

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AMBRO, Circuit Judge, dissenting
In 2021, New Jersey enacted AB 5207, N.J. Stat. Ann.
§§ 30:4-8.15–8.16. That law prohibits state, local, and private
entities from engaging in civil immigration detention within
the State. CoreCivic, which operates the lone private immigra-
tion-detention facility in New Jersey, and the Federal
Government argue that AB 5207 offends the Constitution’s Su-
premacy Clause for two reasons. First, it violates intergov-
ernmental immunity, which bars states from regulating the
Federal Government. And second, it is preempted by various
federal statutes that empower the Department of Homeland Se-
curity to manage how it detains immigrants.
New Jersey’s law no doubt affects the Federal Govern-
ment’s civil immigration-detention operations. But neither
intergovernmental immunity nor preemption invalidates
AB 5207 in my view. Intergovernmental immunity covers only
those state laws that either directly regulate or discriminate
against the United States. AB 5207 does neither. It applies only
to state, local, and private entities. And New Jersey also pro-
hibits private general criminal detention, thus imposing the
same restriction on itself. CoreCivic’s preemption argument
fares no better. The main federal law it invokes—8 U.S.C.
§ 1231(g)(1)—provides only that the Department of Homeland
Security must consider leasing or buying detention facilities
before constructing its own. AB 5207 thus obstructs no federal
statute.
Fortunately, the Constitution provides a solution in net-
tlesome federalism cases like this one: Congress can act. If it
wants the Federal Government to retain the ability to contract
with private detention companies, it may pass legislation say-
ing so. Because the majority would instead force courts to

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2
make unguided decisions about when states interfere exces-
sively with undefined federal interests, I respectfully dissent.
I. BACKGROUND
A. Federal Statutory Background
Congress has given certain executive agencies, includ-
ing the Department of Homeland Security (DHS) and U.S.
Immigration and Customs Enforcement (ICE), significant dis-
cretion in managing civil immigration detention. This
discretion, mainly codified in the Immigration and Nationality
Act (INA), 8 U.S.C. § 1101 et seq., includes deciding how and
where to house immigration detainees. For example, Congress
has provided that “[t]he [Secretary of Homeland Security] shall
arrange for appropriate places of detention for aliens detained
pending removal or a decision on removal.” Id. § 1231(g)(1).
Before “initiating any project for the construction of any new
detention facility,” DHS and ICE “shall consider the availabil-
ity for purchase or lease of any existing prison, jail, detention
center, or other comparable facility suitable for such use.” Id.
§ 1231(g)(2). But if existing “Government facilities … or
[other] facilities adapted or suitably located for detention are
unavailable for rental,” DHS may “expend … amounts neces-
sary to acquire land and to acquire, build, remodel, repair, and
operate” such facilities. Id. § 1231(g)(1).
Congress has also authorized DHS to “make con-
tracts … as may be necessary and proper to carry out the
Secretary’s responsibilities.” 6 U.S.C. § 112(b)(2). DHS has
promulgated regulations permitting ICE to enter contracts with
detention facilities to house and detain immigrants as long as
those facilities meet certain requirements. See 48 C.F.R.
§ 3017.204-90; 8 C.F.R. § 235.3(e).

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3
ICE primarily houses civil immigration detainees in one
of four kinds of facilities: “(1) Service Processing Centers;
(2) Contract Detention Facilities; (3) Intergovernmental Ser-
vice Agreement facilities; and (4) [spaces provided by] riders
on U.S. Marshals Service … or Federal Bureau of Prisons
(BOP) contracts.” App. 91. “Service Processing Centers are
owned by ICE and staffed by a combination of federal employ-
ees (who mainly provide medical care) and contract employees
(who provide detention services).” App. 91. Contract Deten-
tion Facilities, as the name implies, are “owned by private
companies that contract directly with the government and are
predominantly staffed by contract employees.” App. 91. Inter-
governmental Service Agreement facilities involve agreements
between ICE and state or local governments. And riders are
interagency agreements between ICE and other federal agen-
cies that directly manage their own detention facilities.
B. Immigration Detention in New Jersey and AB 5207
In 2021, ICE had entered into four contracts to house
detainees in New Jersey: two intergovernmental service agree-
ments with Essex and Hudson Counties; one U.S. Marshals’
agreement involving Bergen County; and one agreement with
CoreCivic, which privately owned and operated the Elizabeth
Detention Center (EDC). ICE entered into its contract with
CoreCivic to operate EDC in 2005 for three years. It has since
renewed that contract five times. EDC has the capacity to hold
304 detainees, and in aggregate housed more than 2,000 immi-
gration detainees annually in 2022 and 2023.
In 2021, New Jersey’s legislature passed and its Gover-
nor signed AB 5207, N.J. Stat. Ann. §§ 30:4-8.15–8.16. It
prohibits state and local agencies from engaging in civil immi-
gration detention, id. § 30:4-8.16(b)(1), and prohibits any
“private detention facility” in New Jersey from entering,

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4
renewing, or extending any contract to provide private immi-
gration detention, id. § 30:4-8.16(b)(2). The law does not affect
existing contracts to provide immigration detention. Id.
§ 30:4-8.16(b)–(c). New Jersey enacted AB 5207 after finding
that “[d]etention centers and correctional facilities in New Jer-
sey have a history of poor conditions, including inadequate
medical and mental health care, use of isolated confinement,
and incidents of violence and retaliation against people in de-
tention.” Id. § 30:4-8.15(c).
After AB 5207 went into effect, Bergen, Essex, and
Hudson Counties all announced that they would no longer con-
tract with DHS or ICE to detain civil immigration violators. By
the end of 2021, EDC became the only facility housing ICE
detainees within 60 miles of New York City.
C. Procedural Background
CoreCivic challenged AB 5207 on the ground that it
violates the Supremacy Clause and sought an injunction
against New Jersey’s Governor and Attorney General. The
District Court agreed and entered summary judgment for
CoreCivic. In its view, AB 5207 violates the Supremacy
Clause in two ways: (1) it impermissibly interferes with the
immigration-detention functions of the Federal Government,
which are protected under intergovernmental immunity, and
(2) it is preempted by Congress’s delegation of authority to
DHS and ICE to consider leasing existing facilities. New
Jersey timely appealed.

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5
II. INTERGOVERNMENTAL IMMUNITY
DOES NOT APPLY TO AB 5207.
The Supremacy Clause of the Constitution provides that
federal law “shall be the supreme Law of the Land.” U.S.
Const. art. VI, cl. 2. “State laws may violate the Supremacy
Clause in two ways.” Treasurer of N.J. v. U.S. Dep’t of Treas-
ury, 684 F.3d 382, 406 (3d Cir. 2012). First, “under the
doctrine of intergovernmental immunity, states may not ‘regu-
late the Government directly or discriminate against it.’” Id.
(quoting North Dakota v. United States, 495 U.S. 423, 434
(1990) (plurality)). Second, “[u]nder the doctrine of federal
preemption, state laws are invalid if they ‘conflict with an af-
firmative command of Congress.’” Id. (quoting North Dakota,
495 U.S. at 434).
The key difference between intergovernmental immun-
ity and preemption is that the former applies irrespective of
congressional direction. Immunity flows directly from the
Supremacy Clause itself. In a world without federal statutes,
intergovernmental immunity would still invalidate offending
state regulations. Because intergovernmental immunity is such
a powerful constraint on states, basic federalism and separa-
tion-of-powers principles limit its application to the clearest
state intrusions on federal sovereignty: direct regulations on
the Federal Government itself and anti-federal discrimination.
Preemption, by contrast, “provides Congress with the power to
preempt state legislation if it so intends.” Treasurer of N.J.,
684 F.3d at 406 (quoting Roth v. Norfalco LLC, 651 F.3d 367,
374 (3d Cir. 2011)) (internal alteration omitted). In other
words, Congress gets to identify through legislation which fed-
eral interests are important enough to override otherwise valid
state law.

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6
My colleagues never consider whether any congres-
sional command preempts AB 5207. They instead rest entirely
on intergovernmental immunity to strike it down. But using
immunity to invalidate a law like AB 5207, which neither
applies to nor discriminates against the United States, is like
using a hammer to pound in a screw. To make it work, my
colleagues create a new and problematic definition of “direct
regulation.” I first address what I believe to be their
misunderstanding. In my view, preemption, not immunity, is
the proper tool for addressing neutral state laws that substan-
tially but indirectly burden the Federal Government. Then,
once we have the correct test in mind, I believe it becomes clear
that AB 5207 satisfies the intergovernmental-immunity
analysis.
A. Neutral State Laws that Apply Only to Private
Parties Are Not Direct Regulations on the Federal
Government.
The first question is what constitutes a direct regulation.
In the majority’s view, the test is “functional,” Maj. Op. 12,
and we must “look through form and behind labels to sub-
stance,” id. at 9 (quoting City of Detroit v. Murray Corp. of
Am., 355 U.S. 489, 492 (1958)). To my colleagues, AB 5207
is apparently a “functional” direct regulation because it im-
poses a “ban” in a market in which the Federal Government is
the sole buyer and substantially interferes with a core federal
function. I disagree with this argument for three reasons.
First, as a matter of both language and law, a functional
direct regulation is a contradiction in terms. A regulation is di-
rect only when it applies to the object of regulation. A state law
that does not apply to the United States or some entity “so
closely connected to the [Federal] Government that the two
cannot realistically be viewed as separate,” United States v.

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7
New Mexico, 455 U.S. 720, 735 (1982), is not a direct regula-
tion, and its downstream effects cannot transform it into one.
State laws that apply only to private contractors but still affect
the Federal Government, even substantially, are indirect regu-
lations.
Second, the majority’s “functional” direct-regulation
test undermines bedrock federalism and separation-of-powers
principles. Preemption, not immunity, is the appropriate limi-
tation on neutral state laws that do not apply to the Federal
Government yet still affect it. That is because preemption is
more “accommodating of the full range of each sovereign’s
legislative authority and respectful of the primary role of Con-
gress in resolving conflicts between the National and State
Governments.” North Dakota, 495 U.S. at 435. Congress, after
all, has superior institutional capacity to identify which federal
interests are so strong that they displace a state’s otherwise
valid exercise of its police powers.
And third, the majority’s limiting principles—that its
rule applies only to regulations that (1) affect markets in which
the United States is the sole buyer, (2) impose bans, and (3) in-
terfere with core federal functions—are inadministrable.
1. State Laws Must Apply to the Federal
Government to Regulate It Directly.
The majority’s main argument is that state laws that do
not apply to the Federal Government may still count as direct
regulations on the United States for immunity purposes be-
cause states “cannot regulate private parties in a way that
severely undercuts a federal function.” Maj. Op. 11. In my col-
leagues’ view, it is a state regulation’s ultimate effect, not its
legal application, that makes it direct.

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8
But that is not the law, and it has not been for some time.
A state law directly regulates the Federal Government only if
it applies to the United States or some entity standing in its
shoes. Regulations on private contractors that only collaterally
affect the Federal Government are indirect.
The cases my colleagues cite for the proposition that
regulations on private parties count as direct regulations on the
United States itself are from the nineteenth century. Id. at 11
(citing Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 738 (1824);
Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867); Union Pac.
R. v. Peniston, 85 U.S. (18 Wall.) 5 (1873)). Far more recently,
however, the Court reined in the excesses of its early immunity
doctrine. And it told us so in no uncertain terms. “At one time,
[it] struck down many” state regulations on the ground that
they “interfered with ‘the constitutional means which have
been legislated by the government of the United States to carry
into effect its powers.’” North Dakota, 495 U.S. at 434 (quot-
ing Dobbins v. Commn’rs of Erie Cnty., 16 Pet. 435, 449
(1842)). But “that view has now been ‘thoroughly repudi-
ated.’” Id. (quoting South Carolina v. Baker, 485 U.S. 505, 520
(1988)).
The modern cases the majority should rely on tell us that
a direct regulation governs “the performance, by federal offic-
ers and agencies, of governmental functions.” Penn Dairies,
Inc. v. Milk Control Comm’n of Pa., 318 U.S. 261, 269 (1943)
(emphasis added). But make no mistake: “[T]hose who con-
tract to furnish supplies or render services to the government
are not such agencies and do not perform governmental func-
tions.” Id. (emphasis added). So when a state “regulation
operate[s] against suppliers, not the Government,” then “con-
cerns about direct interference with the Federal Govern-
ment … are not implicated.” North Dakota, 495 U.S. at 437

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9
(citations omitted). After all, if the Federal Government “de-
liberately opt[s] for the ‘genius’ of private enterprise in the
operation of its” federal functions, it “enjoys the benefits that
are derived from private operations, but by the same measure,
it must also suffer any reciprocal burdens.” United States v. Pa.
Env’t Hearing Bd., 584 F.2d 1273, 1279 (3d Cir. 1978).
The majority insists, however, that “even as the Court
narrowed the doctrine’s applicability to third parties, it never
eroded its anti-interference core.” Maj. Op. 13. I agree that pre-
venting state interference with federal functions is the principle
animating intergovernmental immunity. But intergovernmen-
tal immunity is not responsible for—or even capable of—
carrying that burden on its own. When a state law neutrally ap-
plies only to private contractors, then it is preemption, not
immunity, that takes over as the main anti-interference doc-
trine. The very cases the majority cites underscore how ill-
suited intergovernmental immunity is to the task of policing
state laws that regulate private contractors.
For instance, the majority claims that United States v.
New Mexico upheld a “neutral tax on federal contractors” be-
cause it did not “substantially interfere with [the federal gov-
ernment’s] activities.” Maj. Op. 12 (quoting 455 U.S. at 735
n.11) (alterations in original). But New Mexico explains that
regulations on federal contractors only rarely count as direct
regulations on the Federal Government itself. The United
States in that case tried to extend intergovernmental immunity
to certain national laboratories by designating them federal
agents. 455 U.S. at 737. The Court rejected that effort as a
“wooden formalism” that would overextend immunity. Id.
When a state law is neutral, intergovernmental “[i]mmunity is
appropriate in only one circumstance: when the levy falls on
the United States itself, or on an agency or instrumentality so

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10
closely connected to the Government that the two cannot real-
istically be viewed as separate entities.” Id. at 735. To enjoy
immunity, a private contractor “must actually ‘stand in the
Government’s shoes.’” Id. at 736 (quoting Murray Corp., 355
U.S. at 503).
The majority likewise relies on United States v. Fresno
County, claiming that it upheld a “state tax on federal employ-
ees because it did not ‘threaten[] to obstruct or burden a federal
function.’” Maj. Op. 12 (quoting 429 U.S. 452, 464 (1977)).
Not quite. Fresno explains that private parties, even ones serv-
ing federal functions, ordinarily do not enjoy intergovern-
mental immunity. “The ‘legal incidence’ of the tax in-
volved … [fell] neither on the Federal Government nor on
federal property.” Fresno, 429 U.S. at 464 (emphasis added).
It was “imposed solely on private citizens who work for the
Federal Government.” Id. So the tax was invalid “only if it dis-
criminate[d] against the Forest Service or other federal em-
ployees.” Id. Although the tax “threaten[ed] to interfere with
federal laws relating to the functions of the Forest Service,” it
did so by “removing an advantage otherwise enjoyed by the
Federal Government in the employment market”—not enough
to count as a direct regulation. Id.
The majority cites footnote 11 of Fresno for, I presume,
its discussion of how a state could hypothetically levy a tax on
federal employees at a rate so high it would “destroy the federal
function performed by” the Federal Government. Id. at 463
n.11. But the Court explained only sentences later that the safe-
guard against that kind of tax would not be the bar on direct
regulations, but the antidiscrimination principle. To pass con-
stitutional muster, a federal-function-destroying tax would
need to apply neutrally. But that “danger would never arise”
because democratic political pressure would discourage

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11
elected officials from “impos[ing]” such a tax “on the income
and property interests of all other residents and voters of the
[s]tate.” Id. “The political check against abuse of the taxing
power found lacking in McCulloch [v. Maryland, 17 U.S. 316
(1819)], where the tax was imposed solely on the Bank of the
United States, is present where the State imposes a nondiscrim-
inatory tax ….” Id. at 463. The Fresno Court never suggested
that such a tax would be unconstitutional on the ground that it
somehow directly regulated the United States.
To recap: the Supreme Court tells us that a state law di-
rectly regulates the United States only when that law applies to
the Federal Government or private entities that cannot realisti-
cally be viewed as separate from the Federal Government
itself. It is not direct when it applies only to private contractors,
even those performing federal functions. And a state law that
does not apply to the Federal Government but collaterally af-
fects it is not a “functional” direct regulation. It is an indirect
regulation.
2. The Majority’s Effects-Based Test Forces Courts
to Make Judgment Calls Better Left to Congress
and Cannibalizes Preemption.
To be sure, New Jersey has not discovered a loophole
in the Supremacy Clause. States do not have free rein to “un-
dercut[] a federal function” through neutral indirect regulation.
Maj. Op. 11. Preemption—a doctrine that courts apply far
more often than intergovernmental immunity—fills that gap.
Yet the majority tries to jam neutral indirect regulations that
burden the Federal Government into the intergovernmental-
immunity framework rather than analyzing them through
preemption.

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12
The Supreme Court’s decision in North Dakota, which
considered how to treat nondiscriminatory state laws that indi-
rectly burden the Federal Government, illustrates the
majority’s error. Justice Stevens, writing for the plurality, con-
cluded that “[a] state regulation is invalid only if it regulates
the United States directly or discriminates against the Federal
Government or those with whom it deals.” 495 U.S. at 435.
“Whatever burdens are imposed on the Federal Government by
a neutral state law regulating its suppliers ‘are but normal inci-
dents of the organization within the same territory of two gov-
ernments.’” Id. (quoting Helvering v. Gerhardt, 304 U.S. 405,
422 (1938)). “Claims to any further degree of immunity must
be resolved under principles of congressional pre-emption.” Id.
(citing Penn Dairies, 318 U.S. at 271).
Justice Brennan, by contrast, would have looked to the
regulation’s effect on the Federal Government’s operations:
“[C]ontrary to the plurality’s view, … those dealing with the
Federal Government enjoy immunity from state control not
only when a state law discriminates but also when a state law
actually and substantially interferes with specific federal pro-
grams.” Id. at 451–52 (Brennan, J., concurring in the judgment
in part and dissenting in part). Like my colleagues in the ma-
jority, Justice Brennan would have extended federal immunity
to nondiscriminatory state regulations that “substantially ob-
struct[] … affirmative federal policies.” Id. at 452.
In the decades leading up to North Dakota, Justice
Brennan’s view had been rejected over and over, making it
clear that Justice Stevens, even in a non-binding plurality opin-
ion, had the better of the debate. The majority’s holding here,
just like Justice Brennan’s theory on which it relies, is incom-
patible with bedrock principles of federalism. The Court in
Penn Dairies held outright that “[s]ince the Constitution has

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13
left Congress free to set aside local … regulation of govern-
ment contractors which burden the national government, [there
is] no basis for implying from the Constitution alone a re-
striction upon such regulations which Congress has not seen fit
to impose ….” 318 U.S. at 271. The Court similarly held in
New Mexico that a state tax on national laboratories did not
trigger freestanding constitutional immunity, regardless of its
effect on federal functions, because “[s]uch complex problems
are ones which Congress is best qualified to resolve.” New
Mexico, 455 U.S. at 744 (quoting United States v. City of De-
troit, 355 U.S. 466, 474 (1958)) (alteration in original).
The plurality in North Dakota in my view correctly syn-
thesized these cases to explain that intergovernmental
immunity does not extend to neutral and indirect regulations
on the United States. This approach is more “accommodating
of the full range of each sovereign’s legislative authority and
respectful of the primary role of Congress in resolving conflicts
between the National and State Governments.” North Dakota,
495 U.S. at 435.
My colleagues claim that Penn Dairies is distinguisha-
ble because the state law there merely “burdened the federal
government incidentally”; it “‘impose[d] no prohibition’ on the
federal government.” Maj. Op 15 (quoting Pub. Utils. Comm’n
v. United States, 355 U.S. 534, 543–44 (1958)) (alterations in
original). In their view, “Penn Dairies said nothing about the
fate of regulations that functionally bar the federal government
from doing something.” Id. This argument fails for two rea-
sons.
First, it tries to draw a legally administrable distinction
between a burden and a ban. As I explain below, even the
United States conceded at oral argument that it could not define
when a state law crosses that line. We were told that we will

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14
know one when we see one. See infra at 19–21. The majority
appears stumped too because it also fails to supply any frame-
work.
But second, and more important, my colleagues are
simply wrong about what Penn Dairies says. I grant them that
the Court did not use the phrase “regulations that functionally
bar the federal government from doing something.” Maj.
Op. 15. But Penn Dairies did say that “governmental immun-
ity from state taxation and regulation” does not extend “beyond
the national government itself” and the “governmental func-
tions performed by its officers and agents.” Penn Dairies, 318
U.S. at 270 (emphasis added). Today, the majority cries foul
over the same kind of state regulations that Penn Dairies dis-
regarded, those that “inevitably impose[] some burdens on the
national government of the same kind as those imposed on cit-
izens of the United States within the state’s borders.” Id. at 271.
But “those burdens, save as Congress may act to remove them,
are to be regarded as the normal incidents of the operation
within the same territory of a dual system of government,
and … no immunity of the national government from such bur-
dens is to be implied from the Constitution which established
the system.” Id. I do not know how to read this language as
saying anything but that state regulations on private parties that
burden the Federal Government are for Congress to manage.
The majority nonetheless insists that the Court has “spo-
ken” on this issue in Public Utilities Commission, which
supposedly held that state regulations on federal contractors
that “effectively ‘place[] a prohibition on the Federal Govern-
ment’” violate intergovernmental immunity. Maj. Op. 15
(quoting Pub. Utils. Comm’n, 355 U.S. at 544) (emphasis
added). One problem: Public Utilities Commission dealt with
preemption, not immunity. And you need not take my word for

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15
it. The Court tells us that it “put to one side ‘cases where, ab-
sent a conflicting federal regulation, a State seeks to impose
safety or other requirements on a contractor who does business
for the United States.’” North Dakota, 495 U.S. at 435 n.7
(quoting Pub. Utils. Comm’n, 355 U.S. at 543) (emphasis
added). It “invalidated the state law because there was a clear
conflict between the state policy of regulation of negotiated
rates and the federal policy, expressed in statute and regula-
tion, of negotiated rates.” Id. (emphases added). The same was
true of another case the majority relies on, Leslie Miller, Inc. v.
Arkansas, 352 U.S. 187 (1956): “the state licensing law came
into direct conflict with ‘the action which Congress … ha[d]
taken to insure the reliability of persons and companies con-
tracting with the Federal Government.” North Dakota, 495
U.S. at 435 n.7 (quoting 352 U.S. at 190) (emphases added).
That, it bears repeating, is about preemption.
The majority also believes that I misread the plurality
opinion in North Dakota. In my colleagues’ view, that case is
distinguishable because the state regulations there did “not re-
strict the parties from whom the Government may purchase
liquor or its ability to engage in competitive bidding,” nor did
they “require the military to submit to state control or to pur-
chase alcoholic beverage[s] from suppliers within the State or
prescribed by the State.” Maj. Op. 16 (quoting North Dakota,
495 U.S. at 441, 443).
Without a hint of irony, the majority recites the North
Dakota Court’s discussion of preemption, not immunity. The
plurality there begins the discussion the majority quotes by not-
ing that “[t]he conclusion that the labeling regulation does not
violate the intergovernmental immunity doctrine does not end
the inquiry into whether the regulation impermissibly inter-
feres with federal activities.” 495 U.S. at 439. Why? Because

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16
“Congress has the power,” by preemption, “to confer immunity
from state regulation on Government suppliers beyond that
conferred by the Constitution alone.” Id. For the reasons the
majority now parrots, the Court concluded that Congress had
“not … spoken with sufficient clarity to pre-empt North Da-
kota’s attempt to protect its liquor distribution system.” Id.
at 440 (emphasis added).
In fact, when the North Dakota plurality did discuss im-
munity, it rejected the very premise of my colleagues’ holding:
that courts, without congressional direction, can distinguish be-
tween incidental economic burdens and excessive interference
with federal interests. North Dakota’s labeling requirement
stopped five out of six alcohol suppliers from selling to an in-
state military base. Id. at 437 n.8. The sixth raised its prices by
as much as $20.50 per case. Id. That seems awfully close to a
“regulation[] that functionally bar[s] the federal government
from doing something.” Maj. Op. 15. Yet even though the state
regulation functionally barred a United States military base
from purchasing alcohol, the plurality “decline[d] to embark
on an approach that would either result in the invalidation or
the trial, by some undisclosed standard, of every state regula-
tion that in any way touched federal activity.” North Dakota,
495 U.S. at 437 n.8. It did not, as my colleagues seem to be-
lieve, contemplate an exception for when courts think they
know better. The majority takes an opinion that stands for the
opposite proposition, quotes it selectively, and holds it out as
supporting their novel test. I would admire the alchemy if I
were not so alarmed by the product.
Last, the majority claims that Justice Stevens’s ap-
proach in North Dakota would “collapse intergovernmental
immunity into the preemption doctrine.” Maj. Op. 24. Alt-
hough this argument is hard to follow, I understand my

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17
colleagues to mean that a more tailored conception of direct
regulation would make that prong of the analysis a dead letter,
leaving everything to preemption. I disagree. Justice Stevens’s
test would not “defang the direct-regulation prong,” as the ma-
jority claims. Id. It would invalidate all state laws that apply to
the United States—for example, those that would prohibit any
party from printing money or detaining immigrants in New Jer-
sey.
It is the majority’s view, not mine, that would merge
preemption and immunity. Indeed, the majority’s test would
seem to make it easier to invoke freestanding constitutional im-
munity than preemption, which does not permit this kind of
“freewheeling judicial inquiry into whether a state statute is in
tension with federal objectives.” Chamber of Com. v. Whiting,
563 U.S. 582, 607 (2011) (internal quotation marks omitted).
3. The Majority’s Limiting Principles Are
Unworkable.
Perhaps recognizing the gravity of the task it has set for
courts, the majority tries to characterize today’s decision as a
ticket for one ride only. On its telling, “[w]e address only a
state ban on contracting in a market where the federal govern-
ment is the only available counterparty for services implement-
ing a core federal power.” Maj. Op. 24–25. I count three sup-
posed limiting principles: that the majority’s expanded direct-
regulation test applies only to state laws that (1) regulate mar-
kets in which the United States is the sole buyer, (2) impose
bans, and (3) limit core federal functions. But on closer inspec-
tion, these limitations provide little direction. Each is
unworkable, forcing judges to draw their own politically sen-
sitive conclusions. When faced with these deficiencies, the
majority has nothing to say. Unfortunately, they leave it to a
future court to sort out the mess.

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18
i. Markets in which the United States is the sole
buyer.
The first limitation the majority identifies is that
AB 5207 applies to a market in which the United States is the
only buyer. This seems persuasive at first blush. After all, if a
state purports to regulate a market in which the United States
is the sole buyer, then we may have a strong indication that the
state is targeting the Federal Government indirectly. The ma-
jority stumbles, however, in characterizing that kind of state
law as a direct regulation. The immunity test already accounts
for state laws that single out the Federal Government: they are
unconstitutional because they are discriminatory. By calling its
single-market-participant claim a direct-regulation argument
rather than a discrimination one, the majority capitalizes on the
intuition that New Jersey is discriminating, but without identi-
fying someone treated better. A state, however, “does not
discriminate against the Federal Government and those with
whom it deals unless it treats someone else better than it treats
them.” United States v. Washington, 460 U.S. 536, 544–45
(1983). And as New Jersey has repeatedly explained, it takes
its own medicine by separately banning private general crimi-
nal detention.
The majority’s argument also forces us to grapple with
complex questions about how to define the relevant market.
My colleagues claim that New Jersey regulates private immi-
gration detention, a market from which only the United States
buys. But that is true only if you ignore New Jersey’s separate
prohibition on general private detention. For the majority’s test
to make sense, my colleagues must accept one of two proposi-
tions. First, AB 5207 would have been constitutional if it had
instead been passed in a single statute banning all private de-
tention in New Jersey. It is unlawful here because it was passed

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19
separately, even though the substantive effect is the same. Or
second, even a statute like the one I described would be partly
unconstitutional because every neutral statute that applies gen-
erally to contractual relationships could be recharacterized as a
partial direct regulation on the United States. Neither makes
sense.
Even the United States agreed that the framing endorsed
by the majority is a discrimination argument. When asked
whether it matters if we define the market as private immigra-
tion detention or private detention generally, the Government
demurred, stating that it does not “understand that framing to
be very important when … talking about the regulation prong.”
Tr. 72:3–5. When pressed on whether the market definition
“bear[s] on how much we look through form to substance,” the
United States responded that “it’s definitely relevant, I think,
for the discrimination prong.” Tr. 72:13–14, 22–23.
If a state law targets a market in which the United States
is the sole buyer but without applying to the United States, it
may be unconstitutional. But if it is, that is because that law
discriminates against, not because it directly regulates, the Fed-
eral Government.
ii. Bans.
The majority’s second limitation is that its test applies
only to bans, not burdens or taxes. But the difference between
a ban and a burden is one of degree, not kind. At oral argument,
the United States essentially conceded that this distinction is
unstable and declined to provide a framework for how to dis-
tinguish a ban from a burden. When asked how we “know
when something goes from incidental to impermissible, func-
tionally or otherwise,” the Government admitted that “that will
be a difficult question in some circumstances for courts to con-
sider.” Tr. 73:14–17. When pressed on whether the difficulty

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20
of this question is what motivated the plurality in North Dakota
to reject a substantial-burden test, the United States “agree[d]
there will be difficult line-drawing problems.” Tr. 69:20–21.
These cases will present “very, very fact-specific inquiries that
[will be] impossible to pre-determine in advance.”
Tr. 73:21–23. Rather than supplying a framework, the Govern-
ment told us that we will know a ban when we see one:
“[W]hatever difficult line-drawing there might be in other
cases, this is a clear case where the Supremacy Clause does not
permit that kind of obstruction.” Tr. 84:20–22. It cannot be that
clear, however, because I see a limitation of discretion, not a
ban. See Tr. 86:13–16 (United States acknowledging that
“[t]he effects on the [F]ederal [G]overnment and the prohibi-
tion to which [it] keep[s] referring” can also be “framed” as
“just a curtailing of discretion”).
An example illustrates the point. Suppose New Jersey
did not stop private entities from entering into immigration-
detention contracts but uniformly taxed them for each immi-
grant they detain. Is that a ban or a burden? If the tax is low,
the majority would probably characterize it as an incidental
burden that does not directly regulate the United States. But
what if it were so high that doing business in New Jersey be-
came impossible for private immigration-detention
companies? Then perhaps the majority would say it is effec-
tively a ban, and thus a “functional” direct regulation. But at
what point does the tax cross the line? The majority not only
fails to tell us—it does not even explain how we would go
about figuring it out.
The plurality in North Dakota anticipated this problem.
It acknowledged that “Justice Brennan’s test contains no stand-
ard by which ‘burdensomeness’ may be measured.” 495 U.S.
at 437 n.8. Determining when a regulation goes from burden to

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21
ban implicates thorny questions about federal interests that
courts are ill-equipped to resolve without congressional guid-
ance. To keep courts out of that mire, the plurality chose to
“rely upon our traditional standard of ‘burden’—that specified
by Congress and, in its absence, that which exceeds the burden
imposed on other comparably situated citizens of the State.”
Id. I would follow Justice Stevens and keep courts out of this
thicket.
iii. Core federal functions.
The majority’s final limitation is that immigration de-
tention implicates core federal functions. On its telling, the
Supreme Court has “implied that courts should treat such laws
as regulating the federal government directly.” Maj. Op. 21.
But the cases the majority cites do not say that.1 Worse yet, my
colleagues fail to mention the cases that hold the opposite.
Penn Dairies considered and rejected the argument that
a neutral, indirect state law that substantially affects important
federal operations nevertheless triggers immunity. Pennsylva-
nia’s price control on milk passed constitutional muster
because it “impose[d] no prohibition on the national govern-
ment or its officers,” only private sellers. Penn Dairies, 318
U.S. at 270. Sure, “[b]y the exercise of control over the seller,
1 As I explain above, New Mexico and Fresno County reject the
majority’s test. See supra at 9–10. The other case the majority
cites for this proposition is Goodyear Atomic Corp. v. Miller,
486 U.S. 174, 181 (1988). It should come as no surprise that
this case is also distinguishable. Ohio tried to apply its work-
ers’ compensation safety requirements to “a federally owned
facility performing a federal function.” Id. Of course, that state
law was a classic direct regulation because it applied by its
terms to the Federal Government.

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22
the regulation impose[d] or may [have] impose[d] an increased
economic burden on the government,” forcing the United
States to “procure a supply from without the state.” Id. “But in
this burden,” absent congressional action to forbid it, Pennsyl-
vania’s law was “no different or greater [an] impairment of
federal authority” than a “state regulation of the operations of
a trucking company in performing its contracts with the gov-
ernment to transport workers employed on a Public Works
Administration project,” or “local building regulations applied
to a contractor engaged in constructing a postoffice building
for the government”—state laws the Court had blessed. Id.
(first citing United States v. Baltimore & A.R. Co., 308 U.S.
525 (1939) (mem.) (per curiam); and then citing James Stewart
& Co. v. Sadrakula, 309 U.S. 94 (1940)). “The trend” of the
Court’s decisions, even then, was “not to extend governmental
immunity from state … regulation beyond the national govern-
ment itself and governmental functions performed by its
officers and agents.” Id.
Perhaps my colleagues in the majority believe private
immigration detention is more important than transporting
workers employed for federal projects or building post offices.
Indeed, maybe everyone can agree, at a high level of abstrac-
tion, that “immigration” is a core federal function. But we
inevitably must draw lines within the immigration domain be-
tween core and non-core functions. And that exercise is fraught
with political judgments. Is supplying the food and bedding for
immigration-detention facilities core? What about deciding the
wages paid to workers at those facilities? What about their san-
itation standards? Or the taxes they must pay? These questions
now matter because the majority has given constitutional sig-
nificance to the answers.

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23
My colleagues would have us make our own unguided
decisions about whether private ownership of immigration de-
tention facilities falls on the right side of the line. But
Congress, not courts, is supposed to determine which federal
functions are sufficiently important that they displace other-
wise valid state law. And we properly analyze those cases
under the rubric of preemption; we do not contort ourselves to
explain how they are somehow direct regulations on the Fed-
eral Government.
B. Applying the Correct Test: AB 5207 Does Not
Violate Intergovernmental Immunity.
Above, I explained the distinction between a direct reg-
ulation and a neutral, indirect regulation that nevertheless
substantially affects the United States. With the right test in
mind, the conclusion is easy: AB 5207, whatever its effects,
does not violate intergovernmental immunity.
1. AB 5207 does not directly regulate the Federal
Government.
CoreCivic argues that AB 5207 is a direct regulation on
the United States because it ultimately affects the Federal Gov-
ernment’s ability to contract with private parties. Even though
the statute applies only to private entities, CoreCivic, like the
majority, insists that we should look past form to substance,
and focus on the regulation’s functional effect rather than its
legal application. But as noted above, a regulation is not direct
just because it affects the Federal Government, even signifi-
cantly. It must regulate “the performance, by federal officers
and agencies, of governmental functions.” Penn Dairies, 318
U.S. at 269 (emphasis added).

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24
The Seventh Circuit’s recent decision in McHenry
County v. Raoul, 44 F.4th 581 (7th Cir. 2022), is instructive.
Illinois prohibited local and municipal governments from en-
tering into contracts with the United States to detain immi-
grants. Several Illinois counties sued, arguing that the law vio-
lated intergovernmental immunity by, among other things,
directly regulating the United States. After all, if a county can-
not contract with ICE, that means ICE cannot contract with that
county.
A unanimous panel of the Seventh Circuit dismissed
that argument in short order. In its view, “the Illinois
Act … impose[d] no direct regulation on any federal official or
agency.” Id. at 593. It reached that conclusion even though “a
consequence of the Act—the intended consequence of the
Act—[wa]s that the federal government will not be able to use
cooperative agreements to house immigration detainees in Illi-
nois State or county facilities.” Id. (emphasis in original). Even
when a state law’s purpose and effect are to burden the Federal
Government, that state law “does not directly regulate the
[F]ederal [G]overnment” if it merely “appl[ies] non-discrimi-
natory regulations to private entities or local
governments … that contract with the [G]overnment.” Id.
at 593 n.6.
2. AB 5207 does not discriminate against the
Federal Government or those with whom it deals.
The discrimination prong of intergovernmental immun-
ity prohibits states from singling out the Federal Government
or its contractors “for less favorable ‘treatment’” or regulating
them “unfavorably on some basis related to their governmental
‘status.’” United States v. Washington, 596 U.S. 832, 839
(2022) (first quoting Washington, 460 U.S. at 546; and then
quoting North Dakota, 495 U.S. at 438 (plurality)). The

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25
District Court did not reach this prong of the analysis. Core-
Civic and the United States nevertheless argue that we can
affirm on this ground because AB 5207 discriminates against
the Federal Government and its contractors in two ways.
The challengers first argue that AB 5207 is discrimina-
tory because only the United States engages in civil
immigration detention. In their view, a restriction on entities
that engage in civil immigration detention necessarily targets
the Federal Government. This is the majority’s argument that
New Jersey targets a market in which the United States is the
sole buyer. See supra at 18–19. As noted already, and as the
parties all agree, this argument sounds in discrimination. But it
fails when analyzed as such because nobody identifies a com-
parator treated better. “Differential treatment is critical to a
discrimination-based intergovernmental immunity claim.” Ra-
oul, 44 F.4th at 594. “The mere fact that [AB 5207] touches on
an exclusively federal sphere is not enough to establish dis-
crimination.” Id.
CoreCivic and the United States also argue that
AB 5207 is discriminatory because New Jersey allows private
entities to detain certain categories of state prisoners. They
note that New Jersey’s Department of Corrections has limited
authority to “authorize the confinement of eligible inmates in
private facilities.” N.J. Stat. Ann. §§ 30:4-91.9–10. The United
States also claims that New Jersey permits counties to “‘con-
fin[e] inmates who are in need of and receiving rehabilitative
and similar services in private facilities’ operated by for-profit
entities.” U.S. Br. 17 (quoting Essex Cnty. Corr. Officers PBA
Loc. No. 382 v. Cnty. of Essex, 106 A.3d 1238, 1248 (N.J. Su-
per. Ct. App. Div. 2014)).
The challengers mischaracterize those laws. Sec-
tions 30:4-91.9–10 permit the Department of Corrections to

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26
transfer a limited number of low-security prisoners to “non-
profit” “residential center[s]”—also known as “halfway
houses”—to finish their sentences. App. 110. Another statute,
§ 30:4-27.2, allows specialized psychiatric facilities to provide
involuntary mental-health services. And in Essex County, the
New Jersey Superior Court acknowledged that state law ordi-
narily forbids private companies from performing the “core
governmental function” of “confining … inmates.” 106 A.3d
at 1249. Such facilities are permissible only when they serve
the “purposes of providing substance abuse, rehabilitative, and
similar services to inmates,” and not merely as “alternative jail
facilities” for “incarceration.” Id. at 1250.
Private immigrant-detention facilities are unlike half-
way houses, psychiatric prisons, and special-purpose
rehabilitative facilities. CoreCivic does not claim to provide
those services. Immigrant detention is more like general pri-
vate criminal detention, which New Jersey also prohibits.
* * *
I recognize that ICE wants private immigration-deten-
tion facilities in New Jersey. AB 5207 will require ICE to
spend more money either to buy or lease existing facilities or
to build new ones. And I understand the majority’s discomfort
with allowing New Jersey to affect federal immigration deten-
tion. In fact, I share that discomfort. But our duty as
intermediate appellate court judges is to follow the doctrine as
it exists, even when it leads to results that make us uncomfort-
able. My colleagues disfigure a clear rule—states cannot
directly regulate the Federal Government—to alleviate their
discomfort. I cannot follow them.

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27
III. NO FEDERAL LAW PREEMPTS AB 5207.
The majority does not address preemption. But as I
stated at the outset, I believe its substantial-interference argu-
ment goes to preemption, not immunity. The preemption
doctrine “provides Congress with the power to preempt state
legislation if it so intends.” Treasurer of N.J., 684 F.3d at 406
(brackets and internal quotation marks omitted). “There are
three types of preemption: express preemption … , field
preemption[,] and conflict preemption.” Id. The United States
and CoreCivic invoke only conflict and field preemption. Alt-
hough it is a closer call, both arguments fail.
A. AB 5207 Is Not Conflict Preempted.
Conflict preemption is a kind of implied preemption
that displaces a state law when that law “stands as an obstacle
to the accomplishment and execution of the full purposes and
objectives of Congress.”2 Arizona v. United States, 567 U.S.
387, 399 (2012) (internal quotation marks omitted). A conflict-
preemption argument, “like all preemption arguments, must be
grounded in the text and structure of the statute at issue.” Kan-
sas v. Garcia, 589 U.S. 191, 208 (2020) (internal quotation
marks omitted). “Our ultimate task in any pre-emption case is
to determine whether state regulation is consistent with the
structure and purpose of the [federal] statute as a whole.” Gade
v. Nat’l Solid Wastes Mgmt., 505 U.S. 88, 98 (1992) (internal
quotation marks omitted). As I previewed above, this is not “a
2 Conflict preemption can also occur if “compliance with both
federal and state regulations is a physical impossibility,” Ari-
zona v. United States, 567 U.S. 387, 399 (2012) (internal
quotation marks omitted), but no one argues that is the case
here.

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28
freewheeling judicial inquiry into whether a state statute is in
tension with federal objectives.” Whiting, 563 U.S. at 607 (in-
ternal quotation marks omitted). Rather, “a litigant must point
specifically to … a federal statute that does the displacing or
conflicts with state law.” Va. Uranium, Inc. v. Warren, 587
U.S. 761, 767 (2019) (internal quotation marks omitted).
Under the INA, Congress requires ICE to detain noncit-
izens, e.g., 8 U.S.C. § 1231(a)(2), and granted DHS discretion
in deciding how to do so, see id. § 1231(g)(1). The Secretary
of Homeland Security must “arrange for appropriate places of
detention for aliens detained pending removal or a decision on
removal.” Id. § 1231(g)(1). The INA also contemplates the
possibility that spaces may be “unavailable for rental.” Id.
When that is so, the Secretary “may expend … amounts neces-
sary to acquire land and to acquire, build, remodel, repair, and
operate facilities … necessary for detention.” Id. (emphasis
added). Before “initiating any project for the construction of
any new detention facility,” the INA directs that ICE “shall
consider the availability for purchase or lease of any existing
prison, jail, detention center, or other comparable facility suit-
able for such use.” Id. § 1231(g)(2) (emphasis added).
Regulations implementing the INA provide that ICE may “en-
ter into contracts of up to fifteen years’ duration for detention
or incarceration space or facilities, including related services.”
48 C.F.R. § 3017.204–90.
AB 5207 prohibits New Jersey, local government agen-
cies, and “privately owned or operated [detention] facilit[ies]”
from “enter[ing] into, renew[ing], or extend[ing] any immigra-
tion detention agreement,” defined as any “contract,
agreement, intergovernmental service agreement, or memoran-
dum of understanding that authorizes the State, local
government agency, or private detention facility to house or

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29
detain individuals for civil immigration violations.” N.J. Stat.
Ann. § 30:4‑8.16. As the United States puts it, this “eliminates
the possibility of choice,” requiring the Federal Government to
own and operate its own facilities. U.S. Br. 6.
Section 1231 does not evince a clear congressional in-
tent that ICE be permitted to use private immigration detention.
Nor does it contemplate that private facilities must be a part of
the detention scheme. And it does not impose a scheme on pri-
vate and public detention facilities or indicate the way it wishes
the system to work. Rather, it leaves the Secretary with discre-
tion to consider and choose from what is available. “[A] high
threshold must be met if a state law is to be preempted for con-
flicting with the purposes of a federal Act,” Whiting, 563 U.S.
at 607 (internal quotation marks omitted), and this case does
not meet the threshold set by our precedent.
For example, this case is distinguishable from Leslie
Miller and Public Utilities Commission. In Leslie Miller, Con-
gress instructed that the United States “shall” award the
relevant contract to the bidder whose bid “w[ould] be most ad-
vantageous to the Government, price and other factors
considered.” 352 U.S. at 188 (internal quotation marks omit-
ted). Arkansas law imposed on contractors additional
requirements for obtaining a license to perform such activity.
Id. The Court concluded that this was enough to create a con-
flict because it “frustrate[d] the expressed federal policy of
selecting the lowest responsible bidder.” Id. at 190.
In Public Utilities Commission, Congress had adopted a
“comprehensive policy governing procurement” that explained
how “the head of an agency” would “negotiate such a purchase
or contract.” 355 U.S. at 540– 41. Federal law mandated select-
ing the least costly means. Id. at 542. Under California law,
that discretion could “be exercised and reduced rates used”

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only if California approved. Id. at 543. The “conflict between
the federal policy of negotiated rates and the state policy of
regulation of negotiated rates” was “clear.” Id. at 544. In those
cases and elsewhere, the “principal indication that Congress in-
tended to pre-empt state law” was its use of “shall.” Gade, 505
U.S. at 99.
But nothing in the INA requires the Secretary to con-
tract with privately operated detention facilities. Even if ICE
were to lease a privately owned building, it could operate that
building itself. I agree with the Seventh Circuit that the statu-
tory language “demonstrates at most a general preference to
use existing facilities when they are available.” Raoul, 44
F.4th at 591 (emphasis added).
B. AB 5207 Is Not Field Preempted Either.
State law is also preempted “when federal law occupies
a field of regulation so comprehensively that it has left no room
for supplementary state legislation.” Murphy v. NCAA, 584
U.S. 453, 479 (2018) (internal quotation marks omitted). We
can infer congressional intent to displace state law altogether
from a framework of regulation “so pervasive that Congress
left no room for the States to supplement it or where there is a
federal interest so dominant that the federal system will be as-
sumed to preclude enforcement of state laws on the same
subject.” Arizona, 567 U.S. at 399 (internal quotation marks
and alterations omitted).
Federal law does not so wholly and exclusively occupy
the field of private immigration detention. Certainly “[t]he
Government of the United States has broad, undoubted power
over the subject of immigration and the status of aliens.” Id.
at 394, 400 (applying the preemption analysis to the “field of
alien registration”). For example, “[p]olicies pertaining to the

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entry of aliens and their right to remain here are … entrusted
exclusively to Congress.” Galvan v. Press, 347 U.S. 522, 531
(1954). And “[t]he authority to control immigration—to admit
or exclude aliens—is vested solely in the Federal Govern-
ment.” Truax v. Raich, 239 U.S. 33, 42 (1915). But just because
a state law touches on immigration law does not mean field
preemption applies. See Ocean Cnty. Bd. of Comm’nrs v. Att’y
Gen. of N.J., 8 F.4th 178 (3d Cir. 2021) (finding no preemption
of a law barring local law enforcement from assisting federal
immigration authorities in certain ways); Lozano v. City of
Hazleton, 724 F.3d 297, 304 (3d Cir. 2013) (explaining that in
Whiting “the Supreme Court upheld an Arizona statute that al-
lowed state courts to suspend or revoke the business licenses
of employers who knowingly or intentionally employ unau-
thorized aliens”).
CoreCivic hardly develops this argument, but it seems
to suggest that the field of “immigration detention” is off lim-
its. AB 5207, however, says nothing about who can be
detained, why, for how long, or even where. It regulates only
whether private entities can operate immigration detention fa-
cilities in the State. This is not the stuff field preemption is
made of.
IV. CONCLUSION
AB 5207 applies only to private, local, and state parties,
not the United States. And New Jersey does not single out im-
migration detention—it prohibits itself from using private
general criminal detention too. The majority nonetheless in-
sists that AB 5207 violates intergovernmental immunity be-
cause it is “functionally” a direct regulation on the United
States. But as a matter of both doctrine and plain language,
state laws that do not apply to the Federal Government are not

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direct regulations—they are indirect because it is their down-
stream consequences that burden the United States. Case law,
basic separation-of-powers principles, and common sense all
tell us that Congress, not courts, should decide when those
spillover effects are so substantial that they violate the Suprem-
acy Clause. And the proper doctrinal method for determining
whether Congress intends to displace a neutral indirect state
law is preemption, not intergovernmental immunity. Because
the majority would have judges rather than legislators make
politically sensitive judgments about when a neutral state law
that does not apply to the United States interferes too much
with federal interests, I respectfully dissent.

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