Most people know the 13th Amendment to the Constitution ended slavery. At least most slavery, as there was a carve out for prisoners.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Now you know. But what about detention facilities holding immigrants? It’s one thing to put prisoners to work, whether cooking meals or breaking big rocks into smaller ones, but contrary to popular ignorant belief, being an undocumented immigrant isn’t a crime, per se, and being held pending deportation isn’t having been duly convicted.

And they still need to eat.

It’s one thing when the detention facilities (note how they’re not called “jails” because that would make them seem unpleasant) are run by the government, as the cost of doing so is merely foisted onto the taxpayer. But with the government subcontracting incarceration to private enterprise, subject to an agreed-upon price per hungry mouth, a problem arises. A huge problem.

Yes, detention is a business. In 2010, private prisons and their lenders and investors lobbied Congress to pass a law ordering Immigration and Customs Enforcement to maintain contracts for no fewer than 34,000 beds per night. This means that when detention counts are low, people who would otherwise be released because they pose no danger or flight risk and are likely to win their cases in immigration court remain locked up, at a cost to the government of about $125 a day.

The people detained at these facilities do almost all of the work that keeps them running, outside of guard duty. That includes cooking, serving and cleaning up food, janitorial services, laundry, haircutting, painting, floor buffing and even vehicle maintenance. Most jobs pay $1 a day; some work they are required to do pays nothing.

That may be the paradigm for prisons, for our modern-day slaves who have been duly convicted of a crime, but the same can’t be said of immigrants. And there are now five suits pending against the two biggest players in private detention, GEO and CCA.

The plaintiffs have a strong case. Forced labor is constitutional so long as it is a condition of punishment, a carve-out in the slavery prohibitions of the 13th Amendment. But in 1896, the Supreme Court held that “the order of deportation is not a punishment for crime.” Thus, while private prisons may require work to “punish” or “correct” criminal inmates, judges in three cases have ruled that immigration detention facilities may not. It’s as legal for GEO to force its facilities’ residents to work as it would be to make seniors in government-funded nursing homes scrub their neighbors’ showers.

The assumption that detention facilities could be run just like prisons, where the “inmates” were put to work to survive, and thus take the cost of their survival off the private for-profit business, may have been taken for granted by the companies, Congress and the government, but the courts haven’t been nearly as obsequious.

GEO’s own defense provides insights into just how much its profits depend on labor coerced from the people it locks up. In 2017, after Federal District Judge John Kane certified a class-action lawsuit on behalf of GEO residents in Aurora, Colo., the company filed an appeal claiming the suit “poses a potentially catastrophic risk to GEO’s ability to honor its contracts with the federal government.”

So the defense is that their business model relied on treating the immigrants in their care as slaves, and if the courts hold they can’t do that, because law or something, it will pose a “potentially catastrophic risk” to GEO’s ability to make a profit honor its contract?

The notion that anyone would proffer an argument that their business model relied on slavery, and so they should be allowed to treat immigrants like slave labor because it was good for them is beyond outrageous. That didn’t stop GEO from making the argument, and then appealing Judge Kane’s class certification to the Tenth Circuit. Things did not go well.

GEO’s appeal tanked. During oral arguments last summer, the company’s lawyer defended the work program by explaining that those held in Aurora “make a decision each time whether they’re going to consent to work or not.” A judge interjected, “Or eat, or be put in isolation, right? I mean, slaves had a choice, right?” The 10th Circuit panel in February unanimously ruled that the case could proceed.

Apparently, the “immigrants want to be slaves” argument was unpersuasive. The problem is that Congress and the executive branch machinery for dealing with immigrants, like GEO and CCA, took it for granted that they could make this happen on the cheap because what are immigrants going to do about it?

On March 7, 18 Republican members of the House, 12 of whom have private prisons in or adjacent to their districts, sent a letter to the leaders of the departments of Labor, Justice and Homeland Security complaining about the lawsuits. They warned that if the agencies don’t intervene to protect the companies, “immigration enforcement efforts will be thwarted.”

And that may well be the case, that they can’t treat immigrants with the same slavish assumptions that apply to prisons, courtesy of the 13th Amendment. It could kill immigration enforcement, not to mention the private detention companies that are free-riding on the backs of custodial immigrants, unless Congress appropriates sufficient funds to pay for the services required to keep human beings who have not been duly convicted of any crime in custody.

Much as Congress and the president may assume that immigrants can be forced into slavery for the sake of private prisons’ profits, the courts haven’t been playing ball. It’s bad enough that slavery remains constitutional in prison, but at least immigrants aren’t included in the carve out.