From today’s opinion United States vs. King CountyWritten by Justice Daniel Bress, joined by Justices Michael Hawkins and Richard Clifton.
For several years, U.S. Immigration and Customs Enforcement (ICE) has operated charter flights from Washington’s King County International Airport, also known as Boeing Field, to transport mobile aliens from this country to other locations. At Boeing Field, Fixed Base Operators (FBOs) rent space from the airport and provide critical services to flights, such as refueling and landing stairs. In 2019, King County, based on clear opposition to federal immigration policy, promulgated Executive Order PFC-7-1-EO to ensure that future Boeing Field leases prohibit FBOs from operating ICE charter flights. He instructed the county authorities. Shortly after the county issued the executive order, all three FBOs operating at Boeing Field announced that they would no longer provide service to ICE.
The Ninth Circuit held that King County’s actions were unconstitutional under the “intergovernmental immunity doctrine.”
Recognizing 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 prohibiting “the following state laws.” Either “Directly regulating the United States” or Discriminating against the federal government or persons doing business with the federal government. ”for exampleContractor). ”…This executive order violates the intergovernmental immunity doctrine in two related ways.
beginningthe executive order improperly regulates how the federal government transports noncitizen detainees by prohibiting ICE from using private FBO contractors at Boeing Field. Of course that’s true.”[p]Because private contractors are not on the same footing as the federal government, states can impose many laws on federal contractors that could not apply to the federal government itself. The question of who performs federal functions conflicts with the supremacy clause. ”
Our grand legal decision is Geo Group, Inc. v. Newsom (9th Cir. 2022) is very informative and will guide your analysis. There is a problem with geo group This was a California law that prohibited the operation of private detention facilities within the state. Because California’s ICE “relies almost exclusively on privately run detention facilities,” California law requires[a]“California has the authority to control ICE’s immigration detention operations within the state by preventing ICE from hiring personnel of its own choosing.” It corresponds to “de facto review authority over federal government decisions” and is an impermissible “violation.”[ed] This is the core promise of the supremacy clause. ”
The core logic of geo group governs this event. King County Executive Order ‘Prevents'[s] ICE contractors are prohibited from “continuing to operate aircraft from Boeing Field,” thereby requiring ICE to “completely transform its approach to its sovereign function of transporting and removing noncitizen detainees.” do”. In doing so, the executive order effectively gives King County “administrative authority.” “ICE’s transportation and deportation operations will force ICE to cease using Boeing Field or use government-owned aircraft there, because this is an unacceptable ‘nullification.’ .[s] If the federal government, pursuant to discretion given by Congress, decides to use private contractors to operate flights, the doctrine of intergovernmental immunity prohibits executive orders.
similar to geo groupthe executive order had the effect of “totally prohibiting the employment of any private contractors” at Boeing Field to transport noncitizens, a necessary step in the classic federal function of immigration enforcement. As mentioned in geo group,”[a]As part of protecting federal business from state control, the Supremacy Clause prevents states from dictating to the federal government who can perform federal business. ” The executive order violates this principle.
Number 2In this respect, it is even more problematic than the California law. geo groupKing County’s executive order ostensibly discriminates against the United States by “identifying” the federal government and its contractors as subject to “unfavorable treatment” or “regulation.”[ing] The executive order “explicitly” treats contractors who provide services to ICE charter flights “differently” than those who do not. Under the executive order, FBOs may use Boeing Field for other purposes. Rather than operating flights that are “involved in the repatriation of immigrant detainees,” the federal government is the only entity involved in the repatriation of immigrant detainees. “burden”[ing] federal operations, and only The executive order violates the anti-discrimination principle of intergovernmental immunity.
Nevertheless, King County said that the U.S. It is argued that there is no evidence of unfair discrimination based on the principle of intergovernmental immunity. The county said the use of ICE charter flights alone is permitted because it poses a “unique risk of protests, property damage, liability, and business interruption” at Boeing Field. [But[ the Executive Order does not bar FBOs from servicing charter flights based on their potential to disrupt airport operations; it instead specifically bars FBOs from servicing ICE charter flights because of their role in carrying out the federal immigration laws. And the Executive Order expressly draws this distinction based on the County’s opposition to federal policy, namely, that “deportations raise deeply troubling human rights concerns which are inconsistent with the values of King County.”
The Executive Order thus does not draw lines based on disruption level but on the FBOs’ role in carrying out a specific federal objective. The title of the Executive Order is, after all, “Prohibition on immigrant deportations.” Even if the disruption risk of a non-ICE charter flight “turned out to be identical” to that of an ICE flight, the Executive Order would still permit the non-ICE flight, but not the ICE flight, to access FBO services at Boeing Field. The Executive Order therefore discriminatorily burdens the United States specifically because of federal immigration operations, based on the County’s disagreement with federal policy. This discrimination, plain on the face of the Order, contravenes the intergovernmental immunity doctrine.
The panel concluded that the anti-commandeering doctrine doesn’t entitle King County to act as it did; among other things,
[T]The United States does not require King County to “establish and enforce” or otherwise “administer” federal immigration programs. This is not a situation where King County employees are being drafted into enforcing federal immigration law on behalf of the federal government. See United States v. California (2019 9th Circuit) (Finding that anti-command doctrine protects California law restricting cooperation between state and local law enforcement officers and federal immigration authorities). McHenry County vs. Raul (7th Circuit 2022) (upholding Illinois law prohibiting state or local governments from detaining or detaining individuals in violation of federal immigration law). In exchange, the United States is asking King County, in its capacity as the owner of a public airport facility, to lift a discriminatory prohibition on the ability of private entities to do business with the federal government in support of federal immigration efforts. King County says no agency would treat this as an anti-command question.
Requiring this form of non-discriminatory access to county property consistent with intergovernmental immunity principles does not raise back-end anti-command issues. When ICE uses a county’s highways to transport immigrant detainees from one location to another simply because the county owns the highways, we are exempt from the threat of unconstitutional recruitment. I don’t recognize it. Similarly, anti-command issues are not recognized here.
To the extent that King County claims it expended resources to secure Boeing Field in response to ICE charter flights, there is no case to suggest that this level of background support rises to the level of unconstitutional recruitment. It is acknowledged that it does not. And in any event, there is no indication that the federal government has ordered King County to provide additional support in connection with ICE charter flights at Boeing Field. The anti-command principle prevents the federal government from taking advantage of it.[ing] Overriding the federal government’s restrictions on the use of private contractors at Boeing Field would not lead to such an outcome.
The panel rejected the county’s “market participant” defense.
[N]o Courts have traditionally applied the market participant doctrine as a defense against state or local actions that violate the intergovernmental immunity doctrine. However, even assuming that the County could mount a market participant defense in this context, the County was not acting as a market participant.
A state or local government may function as a market participant either (1) in pursuit of “efficient procurement of needed goods and services,” or (2) in a sufficiently “narrow scope” to “defeat reasoning.” ” when you act. Its main purpose is not to encourage a general policy; [to] Here, King County reiterates that it adopted the executive order in response to perceived human rights violations in the federal immigration system. This is the clear content and intent of the executive order, and many of the county’s comments. The county’s widespread opposition to federal immigration policy does not reflect King County acting as a market participant.
The county insists that is not the case, saying it issued the executive order “out of concern for business interruption and liability from possible protests on airport property.” First of all, evidence for such confusion is lacking. In any case, the county’s stated concerns about protests, which are only vaguely mentioned in a few parts of the executive order, cannot overcome its overwhelming importance. The executive order is based on King County’s view that “deportation raises serious human rights concerns that are inconsistent with King County’s values.” While King County and its leaders are entitled to such views, the executive order’s clear policy and regulatory basis leaves the market participant doctrine open to invocation as a defense against unjust discrimination against the federal government. Even assuming that there is, King County cannot invoke the market participant doctrine. .
And the commission also concluded that King County’s actions violated “a World War II-era contract to reship Boeing Field to King County.”
In 1941, the United States acquired Boeing Field from King County for use in World War II. In 1948, the United States returned Boeing Field to King County under the Surplus Property Act of 1944. This law, as relevant here, imposed conditions on the use of airports granted to states and local governments by the postwar United States. When the United States handed over Boeing Field to King County under the Act, the parties entered into a “Deed of Assignment.” The transfer document states: “The United States, through its employees or agents, shall at all times have the right to use the landing area of the airport at which the property transferred hereby is located on a non-exclusive basis.” Masu. Or used, free. ”…
[T]This Executive Order violates this provision of the Assignment Instrument. This order would eliminate FBO service to ICE charter flights at Boeing Field, effectively preventing ICE from using the airport. An ICE charter flight is, quite simply, a flight in the United States through the agency Classic Air Charter. The flight also performs a typical federal government function. ICE charter flights fit well with the plain language of transfer documents and surplus property law.
We reject the County’s argument that the transfer document applies only to government-owned or leased aircraft, not charter flights. There is no basis for reading such restrictions into conveyance documents or surplus property law.
Mr. McKay L. Neumeister argued on behalf of the government.
