Privatized Detention & Immigration Federalism

Stanford Law Review Online, Vol. 71, March 2019

13 Pages Posted: 23 May 2019

See all articles by David S. Rubenstein

David S. Rubenstein

Washburn University - School of Law

Pratheepan Gulasekaram

Santa Clara University School of Law

Date Written: March 2019


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

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

Keywords: immigration, detention, privatization, federalism, government contracts, enforcement, private prison corporations

Suggested Citation

Rubenstein, David S. and Gulasekaram, Pratheepan, Privatized Detention & Immigration Federalism (March 2019). Stanford Law Review Online, Vol. 71, March 2019, Available at SSRN:

David S. Rubenstein

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States
785-670-1682 (Phone)

Pratheepan Gulasekaram (Contact Author)

Santa Clara University School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408.554.4188 (Phone)

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