King County (Wash.) Violated Constitution and Contract by Trying to Ban ICE Flights Through Its Airport
From today’s opinion in U.S. v. King County, written by Judge Daniel Bress and joined by Judges Michael Hawkins and Richard Clifton:
For some years, United States Immigration and Customs Enforcement (ICE) chartered flights out of Washington’s King County International Airport, also known as Boeing Field, to transport removable aliens from this country elsewhere. At Boeing Field, fixed base operators, or FBOs, lease space from the airport and provide flights with essential services, such as fueling and landing stairs. In 2019, based on its stated disagreement with federal immigration policies, King County promulgated Executive Order PFC-7-1-EO, which directed county officials to ensure that future leases at Boeing Field prohibit FBOs from servicing ICE charter flights. Shortly after the County issued the Executive Order, all three FBOs operating at Boeing Field announced that they would no longer service ICE.
The Ninth Circuit held that King County’s actions unconstitutionally violated the “intergovernmental immunity doctrine”:
In recognition of the federal government’s independence from state control [under the Supremacy Clause], the intergovernmental immunity doctrine prohibits states from “interfering with or controlling the operations of the Federal Government.” It does so by proscribing “state laws that either ‘regulate the United States directly or discriminate against the Federal Government or those with whom it deals’ (e.g., contractors).” … The Executive Order violates the intergovernmental immunity doctrine in two related ways.
First, the Executive Order improperly regulates the way in which the federal government transports noncitizen detainees by preventing ICE from using private FBO contractors at Boeing Field. It is of course true that “[p]rivate contractors do not stand on the same footing as the federal government, so states can impose many laws on federal contractors that they could not apply to the federal government itself.” That said, “any state regulation that purports to override the federal government’s decisions about who will carry out federal functions runs afoul of the Supremacy Clause.”
Our en banc decision in Geo Group, Inc. v. Newsom (9th Cir. 2022) is highly instructive and guides our analysis. At issue in Geo Group was a California law prohibiting the operation of private detention facilities within the state. Because ICE in California “relies almost exclusively on privately operated detention facilities,” California’s law “g[a]ve California the power to control ICE’s immigration detention operations in the state by preventing ICE from hiring the personnel of its choice.” This state of affairs amounted to “a ‘virtual power of review over the federal determination’ of appropriate places of detention” and impermissibly “breach[ed] the core promise of the Supremacy Clause.”
The core logic of Geo Group governs this case. King County’s Executive Order “prevent[s] ICE’s contractors from continuing to” operate flights out of Boeing Field, thereby “requiring ICE to entirely transform its approach to” its sovereign function of transporting and removing noncitizen detainees. In so doing, the Executive Order effectively grants King County the “power to control” ICE’s transportation and deportation operations, forcing ICE either to stop using Boeing Field or to use government-owned planes there. Because this impermissibly “override[s] the federal government’s decision, pursuant to discretion conf
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