US Immigration and Customs Enforcement is moving to place its private detention network beyond the reach of state inspectors, publishing draft contract terms that declare state and local laws “shall not apply” to the facilities, according to federal documents reviewed by WIRED. The new terms were published on July 10, a day after a federal judge ruled that a contract cannot override state law and ordered ICE’s largest Pacific Northwest detention center opened to Washington health officials. The ruling, by US District Judge Benjamin Settle, came after three years of litigation, 10 refused inspections, and 3,500 detainee complaints. The move represents a direct challenge to the principle of federalism, raising fundamental questions about the limits of federal contracting power and the ability of states to enforce basic health and safety standards within their borders.
The Judge’s Ruling: A Contract Cannot Preempt State Law
Judge Settle’s decision in the Western District of Washington was unequivocal. He ordered the GEO Group, the private prison company that owns the Tacoma facility, to admit Washington state health inspectors, ruling that nothing in the company’s federal contract barred them and that no contract could override state law in any case. The judge found that GEO had executed a new contract with ICE in the middle of the lawsuit to support the company’s claim that ICE, not GEO, controlled access to the building. “Preemption requires Congressional intent, not a contract,” Settle wrote, “and GEO’s new contract cannot preempt state law, even if it purports to.”
Settle also noted that GEO’s court filing omitted part of a contract provision under which ICE agreed to ask the Justice Department to get GEO dismissed from lawsuits over its performance, or to have ICE substituted as the defendant. This omission suggested a pattern of selective disclosure designed to bolster the company’s legal position. The ruling was preliminary, meaning it binds no court outside Washington, but its legal reasoning was clear: a federal contract cannot unilaterally displace state law.
ICE’s Response: Draft Contract Terms Declaring State Law Shall Not Apply
The next morning, on July 10, ICE published draft contract terms for 5,500 detention beds in four regions of the country, including language declaring that state and local laws “shall not apply” to the facilities’ operations. The timing was striking. The new procurement document, posted to a federal contracting site and first reported by the newsletter Project Salt Box, is framed as an early step toward a competitive bidding process, but its terms suggest otherwise. Facilities must begin housing detainees within 30 days of an award, a timeline no new construction could meet, and the required bed counts and locations align with four detention centers GEO already operates: in Tacoma, Washington; Aurora, Colorado; Pompano Beach, Florida; and Philipsburg, Pennsylvania.
The Florida requirement, 700 beds, matches the Pompano Beach facility’s contracted bed guarantee exactly, according to ICE’s own facilities data. Operating agreements for the four sites lapse in the coming months: Tacoma’s contract runs through October 27, the Pennsylvania facility’s county agreement expires September 28, and GEO’s securities filings show the Colorado and Florida contract terms end in October and September, respectively. Companies had less than a week to respond before the window closed July 17.
What the Draft Contract Language Actually Says
The draft contract terms are new, but the language attempting to nullify state law is not. It appears nearly word for word in the Tacoma contract that GEO signed in March, in the middle of the lawsuit, the same contract Settle ruled “cannot preempt state law, even if it purports to.” ICE is now proposing to extend it to three more states. The clause declares that state and local laws “shall not apply” to the facilities’ operations, effectively seeking to create a federal enclave within state borders where state health, safety, and labor codes have no force.
This language is a direct response to the Washington litigation. By embedding it in new contracts across multiple states, ICE is attempting to create a legal framework that would require state officials to litigate each facility individually, rather than establishing a uniform standard. The practical effect would be to force states to spend years in court before they can even inspect conditions inside detention centers, all while the federal government argues that the contract itself preempts state law.
How Preemption Works in Practice
Preemption is a constitutional doctrine that holds federal law supersedes conflicting state law, but it requires Congressional intent, not a contract. The Supreme Court has long held that federal agencies cannot preempt state law through contract language alone. A contract between the federal government and a private company cannot unilaterally nullify state health, safety, or labor codes. Judge Settle’s ruling was consistent with this principle: “Preemption requires Congressional intent, not a contract, and GEO’s new contract cannot preempt state law, even if it purports to.”
Despite this clear legal precedent, ICE is doubling down. The agency is betting that the cost and complexity of litigation will deter states from challenging the language, and that even if they do, the time required to resolve these cases will allow the agency to operate without meaningful oversight for years. The Washington experience is instructive: the state needed three years of litigation to get inspectors to the door of one facility, and they are still outside, held off by a stay while GEO appeals.
The Washington Litigation: A Case Study in Legal Obstruction
The Washington case offers a window into the tactic ICE is now seeking to nationalize. The state began seeking access to the Tacoma facility in 2023, after receiving complaints about medical care, sanitation, and conditions inside the detention center. Over the next three years, the state made 10 requests for inspections, each of which was refused. During that period, 3,500 detainee complaints were filed, according to the state. The litigation finally resulted in Judge Settle’s order on July 9, but the relief was short-lived. A Ninth Circuit judge temporarily paused the order on July 21, with a decision on a longer stay expected in early August.
The sequence of events is revealing. GEO signed a new contract with ICE in March 2026, in the middle of the lawsuit, specifically to support the company’s claim that ICE, not GEO, controlled access to the building. The contract included the “shall not apply” language. When the judge rejected that argument, ICE responded by publishing the same language in draft contracts for four regions, effectively daring other states to try the same approach. The message was clear: even if you win in court, we will make you fight the same battle again in every jurisdiction.
The Four Facilities at the Center of the Dispute
The draft contracts cover four specific facilities, all operated by GEO Group. Each is located in a different state, creating a potential patchwork of litigation that could consume years of legal resources.
- Tacoma, Washington: The Northwest ICE Processing Center, with a contract running through October 27. This is the facility at the center of the current litigation. The state has been fighting for access since 2023, and despite the judge’s order, inspectors remain outside due to the Ninth Circuit stay.
- Aurora, Colorado: The Aurora Detention Facility, with a contract expiring in October. Colorado has been active in seeking oversight of detention facilities, and the state’s attorney general has already signaled interest in the case.
- Pompano Beach, Florida: The Broward Transitional Center, with a contract expiring in September. The Florida requirement is exactly 700 beds, matching the facility’s current contracted bed guarantee. Florida has taken a different approach to immigration enforcement, but the state’s health and safety codes still apply within its borders.
- Philipsburg, Pennsylvania: The Moshannon Valley Processing Center, with a county agreement expiring September 28. Pennsylvania’s regulatory framework for detention facilities has been a subject of debate, and the state’s health department has previously sought access to immigration detention centers.
The bed counts and locations align so precisely with GEO’s existing facilities that the competitive bidding process appears to be a formality. The 30-day activation requirement effectively excludes any company that does not already have operating facilities in these locations, narrowing the field to GEO and possibly one or two other private prison operators with existing infrastructure.
Why This Matters: The Broader Implications for State Oversight
The dispute is not merely about four facilities. It is about the principle of state oversight in federal contracting. Immigration detention centers are physically located within states, and the people held there are subject to state health, safety, and labor codes. When a federal contract purports to nullify those codes, it creates a legal gray zone where basic standards of care may go unenforced.
State health inspectors are responsible for ensuring that detention facilities meet the same standards as other residential facilities within their jurisdiction. They check for adequate medical care, sanitation, food safety, fire safety, and other basic conditions. Without access, they cannot fulfill that responsibility. The “shall not apply” language is designed to prevent them from even walking through the door.
The practical consequences are significant. Detainees in immigration detention centers have reported inadequate medical care, unsanitary conditions, and mistreatment. Without state oversight, there is no independent mechanism to verify or address these complaints. The federal government’s own inspector general has limited resources and cannot conduct frequent inspections of every facility. State health departments are the natural backstop, but only if they can get inside.
What Is the Legal Basis for ICE’s Position?
ICE’s position appears to rest on the theory that federal contracts can preempt state law through the Supremacy Clause, which holds that federal law is the supreme law of the land. The argument is that if a federal contract says state law does not apply, then state law does not apply. This is a novel interpretation of preemption doctrine, and it has been rejected by the federal judge who reviewed it. Settle’s ruling was clear: “Preemption requires Congressional intent, not a contract.” The Supreme Court has consistently held that preemption requires a clear statement of Congressional intent, either in the text of a statute or in the structure of a regulatory scheme. A contract between a federal agency and a private company does not meet that standard.
Despite this, ICE is proceeding with the language, likely based on the calculation that even if it loses in court, the litigation itself will serve as a barrier to oversight. The Washington case required three years of litigation and produced a ruling that is now stayed pending appeal. For other states, the prospect of a similar multi-year legal battle may be enough to deter them from seeking access in the first place.
The Timing: A Strategic Response to a Judicial Setback
The timing of the draft contract publication is critical. The new terms were published on July 10, the morning after Judge Settle issued his ruling. This was not a coincidence. The draft contracts were prepared in advance, and the agency was ready to publish them immediately after the decision. The message to the court and to the states was clear: the ruling will not change the agency’s approach.
By publishing the same language in draft contracts for four states, ICE is attempting to create a unified legal front that would require each state to litigate separately. The agency is betting that the cost and complexity of this approach will deter most states from even trying. Washington spent three years in court and still has not gained access to the Tacoma facility. How many other states will have the resources and political will to pursue a similar case?
The contract terms also include a 30-day activation requirement, which effectively forces the bidding process to favor existing operators. This is a common feature of federal procurement, but in this context, it takes on added significance. By limiting the pool of bidders to companies that already operate facilities in these locations, ICE is ensuring that the “shall not apply” language will be enforced by companies with a track record of resisting state oversight.
The GEO Group’s Role and Legal Strategy
GEO Group has been at the center of this dispute from the beginning. The company operates the Tacoma facility and has been the primary defendant in the Washington litigation. The company’s legal strategy has been to argue that it cannot comply with state inspection requests because its contract with ICE gives the federal government exclusive control over access to the facility. This argument was rejected by Judge Settle, who noted that the contract language was irrelevant to the question of preemption.
GEO’s securities filings show that the company’s contracts in Colorado and Florida expire in October and September, respectively, creating a natural deadline for the new procurement process. The Pennsylvania facility’s county agreement expires September 28, and the Tacoma contract runs through October 27. The draft contracts are designed to replace these expiring agreements with new ones that include the “shall not apply” language, effectively locking in the legal position for another contract term.
The company’s market position is significant. GEO is one of the largest private prison operators in the United States, with a substantial portion of its revenue coming from immigration detention contracts. The ability to operate without state oversight is a competitive advantage, as it reduces the cost and complexity of compliance. The “shall not apply” language is therefore not just a legal position but a business strategy.
The Ninth Circuit Stay and What It Means
On July 21, a Ninth Circuit judge temporarily paused Judge Settle’s order, with a decision on a longer stay expected in early August. The stay means that Washington state health inspectors remain outside the Tacoma facility, despite the judge’s ruling. The Ninth Circuit’s decision on the stay will be a critical indicator of how the appellate court views the legal issues at stake.
If the Ninth Circuit grants a longer stay, it will allow GEO and ICE to continue operating without state oversight while the appeal proceeds. This could take months or even years. If the court denies the stay, the state will finally gain access to the facility, at least temporarily. The outcome will have implications for the other three facilities covered by the draft contracts, as it will signal the likelihood of success in similar challenges.
The stay also highlights the asymmetry of the litigation. A state may spend years seeking access to a facility, and even after winning a court order, the federal government can seek a stay that effectively nullifies the ruling. The “shall not apply” language is designed to exploit this asymmetry, making it as difficult as possible for states to enforce their own laws.
Practical Consequences for Detainees and State Health Officials
For detainees in ICE facilities, the practical consequences of the “shall not apply” language are immediate and tangible. Without state oversight, there is no independent mechanism to ensure that facilities meet basic health and safety standards. Detainees must rely on the federal government’s own internal oversight, which has been criticized for being insufficient and slow.
State health officials, for their part, are caught in a legal bind. They have a duty to enforce state health and safety codes, but they cannot access the facilities to perform inspections. The “shall not apply” language creates a legal barrier that prevents them from fulfilling their statutory responsibilities. The only remedy is litigation, which is expensive, time-consuming, and uncertain.
The 3,500 detainee complaints filed in Washington during the three years of litigation provide a window into the conditions that state inspectors would have been able to assess. Without access, these complaints remain unverified and unaddressed, at least through the state’s oversight mechanism. The federal government’s own complaint process exists, but it operates without the transparency and accountability that state oversight provides.
The Broader Pattern: ICE’s Expansion of Private Detention
The draft contracts are part of a broader pattern of ICE expanding its private detention network. The agency has been moving to place facilities beyond the reach of state and local oversight, using contract language, legal arguments, and procedural tactics to resist inspection and regulation. The “shall not apply” language is the most explicit example of this approach, but it is not the only one.
ICE has also sought to limit the application of state labor laws, environmental regulations, and building codes at its facilities. The agency has argued that federal contractors are immune from state regulation, even when the facilities are located within state borders. This legal position is controversial and has been rejected by multiple courts, including Judge Settle’s ruling in the Washington case.
The expansion of the private detention network is driven by both policy and practical considerations. Private facilities allow ICE to house detainees without the cost and complexity of building and operating its own facilities. But the reliance on private contractors also creates a regulatory gap, as the contractors are not directly accountable to the state and local governments where they operate.
What the Competitive Bidding Process Actually Entails
The procurement document is framed as a competitive bidding process, but the terms make it clear that the competition is limited. The 30-day activation requirement means that only companies with existing facilities in the specified locations can compete. The bed counts and locations align precisely with GEO’s existing facilities. The window for responses was less than a week, closing on July 17.
This is not a genuine competitive bidding process in the traditional sense. It is a procurement designed to achieve a specific outcome: the continuation of the existing arrangements with GEO, but with the addition of the “shall not apply” language. The short timeline, the specific requirements, and the alignment with GEO’s facilities all point to a process that is intended to produce a predetermined result.
Companies that might have bid on the contracts had little time to prepare proposals. The requirement to begin housing detainees within 30 days of an award effectively excludes any company that does not already have a facility in the specified location. For GEO, which already operates all four facilities, the requirement is trivial. For any other company, it would be impossible.
The Legal Landscape: State Authority Under the Tenth Amendment
The Tenth Amendment reserves to the states all powers not delegated to the federal government by the Constitution. Among these reserved powers is the authority to regulate health, safety, and welfare within state borders. This is the fundamental principle that underlies state inspection of detention facilities. When a federal contract purports to nullify state law, it raises a Tenth Amendment question: can the federal government, through a contract, effectively nullify a state’s reserved powers?
Judge Settle’s ruling suggests that the answer is no. The judge held that a contract cannot preempt state law, even if it purports to. This is consistent with the Supreme Court’s jurisprudence, which has held that preemption requires Congressional intent, not a contract. The federal government cannot delegate to its contractors the power to nullify state law, because the federal government itself does not have that power absent Congressional authorization.
ICE’s position is therefore on shaky legal ground. The agency is essentially arguing that its contracts can do what the Constitution does not allow it to do directly. This is a creative legal argument, but it is unlikely to survive judicial scrutiny, at least in the Ninth Circuit. The question is whether other circuits will agree, and how long the litigation will take.
Future Outlook: What Happens Next
The immediate future depends on the Ninth Circuit’s decision on the stay. If the court denies the stay, Washington state health inspectors will finally gain access to the Tacoma facility, setting a precedent that could embolden other states to seek access to GEO’s facilities. If the court grants a longer stay, the litigation will continue, and the “shall not apply” language will remain in effect for the duration of the appeal.
In the meantime, the draft contracts are moving forward. The bidding window closed on July 17, and the awards are expected to be announced in the coming weeks. If GEO is awarded the contracts, as appears likely, the company will operate the four facilities under the “shall not apply” language for the duration of the new contract terms. States that wish to challenge the language will need to file their own lawsuits, starting the process anew in each jurisdiction.
For states like Colorado, Florida, and Pennsylvania, the question is whether to invest the resources necessary to litigate the issue. The Washington case shows that the litigation can take years and may not produce immediate results. On the other hand, the Washington case also shows that the judicial system is willing to reject the “shall not apply” language, at least at the district court level. The calculus for each state will depend on the political will of its elected officials, the resources of its attorney general’s office, and the level of public concern about conditions in detention facilities.
The broader issue is whether the federal government can use its contracting power to create a parallel legal system within state borders. The “shall not apply” language is a direct challenge to the principle of federalism, and it is likely to be tested in multiple courts in the coming years. The outcome of these cases will determine whether states retain the authority to enforce basic health and safety standards in immigration detention facilities, or whether the federal government can effectively contract its way out of state oversight. The Washington case has already provided one answer: a contract cannot preempt state law. But until that answer is confirmed by higher courts and applied to other states, the “shall not apply” language will remain in effect, and the inspectors will remain outside the door.
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