The Supreme Court of the United States

In re: Lincoln Bill 252, Ban on Federal Private Prisons in Lincoln Act

Case №20–15, 101 M.S. Ct. 119

Bsddc, J., delivered the unanimous opinion of the Court. Cheatem, J., concurs, in which JJEagleHawk, Reagan0, JJ., join.

I. Introduction

We’ll keep this one short. Or, at least, we’ll try to.

Whether private federal prisons are wise or witless, we conclude only the Federal Government may determine whether they are desirable.[1] And so, we hold Lincoln Bill 252 void.

The Federal Government contracts with private companies to run some federal prisons. Over the past decade, substantial policy concerns have arisen around those prisons. After all, only the government may enforce criminal laws.

Acting upon these concerns, Lincoln prohibited the Federal Government from contracting “with a private contractor or private vendor” to operate “a correctional facility” in Lincoln. Lin. B.252 Ban on Federal Private Prisons in Lincoln Act.

The question we face is this: can Lincoln do so? Petitioner and the United States as a party in interest say “no.” They point to preemption doctrines, the structure of the United States, and the nature of dual sovereignty to show that a state may not regulate the Federal Government’s power to enter into contracts.

Lincoln never filed a brief or responded to a question in this case. Yet instead of reaching a default judgement, we consider the merits. We assume that Lincoln believes the law to be constitutional.

II. Construction of the Bill

Because the Lincoln Supreme Court denied review, we must interpret the meaning of Bill 252 in the first instance.

Interpretation of the act must be undertaken according to Lincoln’s rules of statutory construction. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Under Lincoln law, interpretation begins with the “plain reading” of the statute. In re: 720 ILCS 5/11–11, №20–12 (Lin. 2020). Such readings must be “placed in context” that includes “the overall statutory scheme” and “common sense.” In re: B.145 Acceptance Day Act, №20–09 (Lin. 2020) (internal quotes omitted). And finally, “absurd” interpretations that “boggle[] the mind” are disfavored and require “extraordinary support.” Id.

Guided by these principles, we conclude that the plain text of the statute governs. The Bill’s text prohibits “the Federal Government of the United States” from contracting with “a private contractor or private vendor for the provision of services relating to the operation of a correctional facility or the incarceration of persons within the statue of Lincoln.” B.252 § (III)(a).

The context of Lincoln’s statutes supports this plain reading. As Section II of the Bill explains, Lincoln’s assembly “continues to uphold the legislative findings of a previous assembly enumerated in 730 ILCS 140/2.” Lincoln already banned private state prisons. With that context in mind, there is no reason to depart from the clear text that this act bans the private operation of federal prisons in Lincoln.

Of course, if such an interpretation would be “absurd” it should be avoided. In re: B. 145 Acceptance Day Act, supra. And here, the state action is, as we will explain, certainly “absurd” and does “boggle the mind.” But because the plain text, context, and legislative intent are clearly aimed at stopping the operation of federal private prisons in Lincoln, we conclude this absurd reading has “extraordinary support.”

Thus, we must consider whether Lincoln may constitutionally prohibit the Federal Government from contracting for private prison services.

III. Dual not Exclusive Sovereignty

Although various arguments have been raised to challenge the law there is no need to make this case so complex.

The rule is simple: a state may not impair the ability of the Federal Government to carry out its power. We said as much over two centuries ago. McCulloch v. Marland, 17 U.S. 316 (1819). (“The States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into effect the powers vested in the national Government.”).

Simply put, Lincoln has no power to tell the Federal Government what to do or whom to contract with. If the power to tax is the power to destroy, see id., the same is true of the power to prohibit contracting.

Moreover, the structure of the federal system denies the state this power. It is fundamental that the states and federal government operate in dual, not exclusive, sovereignty. Both the states and the Federal Government are constrained in the actions they may take against one another. Powers belonging to the states are retained under the Tenth Amendment. See In re: Pub. L. B.074 (The Police Reform Act of 2015), Case №16–03, 100 M.S. Ct. 112 (2016). And that means the Federal Government may not conscript state officials, for example. Id.

But sovereignty flows both ways. Just as the states retained their rights, the Federal Government has “inviolable” sovereignty that cannot be displaced by the states. Id.; see McCulloch, supra. That sovereignty includes the power to enter into contracts, like those that Lincoln attempts to ban.

Lincoln’s attempt to decide the issue for the United States is a usurpation. That decision is not Lincoln’s to make. In attempting to control the Federal Government, Lincoln has tried to make its judgement the judgment of all citizens of the United States. Lincoln is free to shutter its own private prisons. It may not attempt to control the Federal Government, even if such control takes place only within Lincoln’s borders.

We are one nation in the end — the states are not individual kingdoms.

IV. Conclusion

Lincoln attempted to control federal contracts. But the power to control is the power to destroy. Precedent, structure, and sovereignty lead us to the inevitable conclusion that Lincoln’s actions are beyond its power. Lincoln Bill.252, the “Ban on Federal Private Prisons in Lincoln Act” is held void in its entirety as it is not severable.

It is so ordered.

Cheatem, J., concurring, with whom JJEagleHawk and Reagan0 join.

We concur with the Majority that the challenged statute is void as exceeding the power of a state. A state lacks authority to dictate to the federal government what actions it must take. Nonetheless, we write separately to express our view that, regardless of the constitutionality of any state legislation on the subject, federal delegation of the law enforcement authority to private parties is itself impermissible under our Constitution.

It is by now well-established that Congress can delegate some, but not all, of its powers — appropriately named the “non-delegation doctrine.” This doctrine applies with particular force when the party to which the powers are delegated is a private entity. Thus in Carter v. Carter Coal Co., 298 U.S. 238 (1936), we held unconstitutional a scheme under which Congress had attempted to delegate to private corporations the ability to, inter alia, fix prices of bituminous coal. We explained: “This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons.” Id. at 311. We provided two different rationales. First, the statute delegated the governmental authority to a private entity with a financial incentive to abuse that authority. Id. Second, the statute delegated to a private entity a fundamental “government function.” Id.

Both rationales apply to the instant case, compelling the conclusion that the delegation is similarly barred. Here, the federal government has attempted to delegate a fundamental government function — the deprivation of liberty of a person — to private entities with a vested financial interest in maintaining that deprivation.

The private entities to which the government delegated the authority necessarily have a profit-making incentive (and, arguably, a legal responsibility to its shareholders) to abuse that delegation, namely the fact that they profit based upon the number of prisoners they house. Accordingly, “[t]hat naked self-interest compromise[s] their neutrality and work[s] ‘an intolerable and unconstitutional interference with personal liberty and private property.’” Ass’n of Am. R.R. v. U.S. Dep’t of Transp., 821 F.3d 19, 29 (D.C. Cir. 2016) (quoting Carter, 298 U.S. at 311); Carter, 298 U.S. at 311 (“The delegation is so clearly arbitrary, and so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment, that it is unnecessary to do more than refer to decisions of this court which foreclose the question. ”).

Likewise, the contracts with private prison corporations violate the bar on delegation of fundamental government functions to private entities. Cf. id. (“The difference between producing coal and regulating its production is, of course, fundamental. The former is a private activity; the latter is necessarily a governmental function”). If regulating the production of bituminous coal is “necessarily a government function,” then so too must be the ability to deprive a person of their liberty and maintain that deprivation over a long period of time. After all, the state’s monopoly on the legitimate use of violence, out of which its ability to deprive its citizens of their liberty grows, is a “foundational premise of modern government” McDonald v. City of Chicago, 561 U.S. 742, 892 (2010) (Stevens, J., dissenting); see also Robertson v. U.S. ex Rel. Watson, 560 U.S. 272, 282–83 (2010) (“A basic step in organizing a civilized society is to take that sword out of private hands and turn it over to an organized government, acting on behalf of all the people.”).

In light of these well-established principles of our constitutional order, the sole possible conclusion is that the execution of government contracts to establish or maintain privately-operated or -owned prisons is unlawful.

Footnotes

[1] Of course, the Federal Government’s power is likewise constrained by the Federal Constitution. The concurrence raises compelling arguments on the point. But such issues have never been raised in this appeal and are not resolved by this case.