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 conferred by Congress, to use private contractors to run its" flights, the intergovernmental immunity doctrine bars the Executive Order.
Analogous to Geo Group, the Executive Order effects at Boeing Field "an outright ban on hiring any private contractor" to transport noncitizens, a necessary step in the classically federal function of immigration enforcement. As we said in Geo Group, "[a]s part of its protection of federal operations from state control, the Supremacy Clause precludes states from dictating to the federal government who can perform federal work." The Executive Order violates this precept.
Second, and in this way even more problematic than the California law in Geo Group, King County's Executive Order on its face discriminates against the United States "by singling out" the federal government and its contractors "for unfavorable treatment" or "regulat[ing] them unfavorably on some basis related to their governmental 'status.'" The Executive Order "explicitly treats" contractors who serve ICE charter flights "differently" from those who do not. Under the Executive Order, FBOs may use Boeing Field for any purpose other than servicing flights "engaged in the business of deporting immigration detainees." And the only entity in the business, so to speak, of deporting immigration detainees, is the federal government. By "burden[ing] federal operations, and only federal operations," the Executive Order violates the anti-discrimination principle of the intergovernmental immunity doctrine.
King County nevertheless argues that the United States has not demonstrated improper discrimination under the intergovernmental immunity doctrine because "significant differences" exist between the federal government and other charterers at Boeing Field that "justify the inconsistent … treatment." According to the County, singling out ICE charter flights is permissible because those flights pose a "unique risk of protest, property harm, liability, and business disruption" 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]he United States is not asking King County to "enact and enforce" or otherwise "administer" any federal immigration program. This is not a situation in which King County officials are being conscripted into carrying out federal immigration laws on the federal government's behalf. See U.S. v. California (9th Cir. 2019) (finding that the anti-commandeering principle protected a California law limiting the cooperation of state and local law enforcement officers with federal immigration authorities); McHenry County v. Raoul (7th Cir. 2022) (upholding an Illinois law that prohibited state or local governments from housing or detaining individuals for federal immigration violations). Instead, the United States is asking King County, in its capacity as the owner of a public airport facility, to lift a discriminatory prohibition on private parties' ability to engage in business with the federal government that supports federal immigration efforts. King County identifies no authority that would treat this as an anti-commandeering question.
Requiring this form of non-discriminatory access to county property consistent with the intergovernmental immunity doctrine does not create a back-end anti-commandeering problem. We would not perceive a threat of unconstitutional commandeering when ICE uses county highways to transport immigration detainees from one place to another just because the county owns its highways. Similarly, we discern no anti-commandeering issue here.
To the extent King County argues that it has expended resources ensuring the safety of Boeing Field in response to ICE charter flights, it identifies no case treating this degree of background support as rising to the level of unconstitutional commandeering. 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-commandeering principle prevents the federal government from "harness[ing] a State's legislative or executive authority." Invalidating a restriction on the federal government's use of private contractors at Boeing Field does not lead to that result.
The panel rejected the County's "marketplace participant" defense:
[N]o court has previously applied the market participant doctrine as a defense to state or local actions that otherwise violate principles of intergovernmental immunity. But even assuming 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 functions as a market participant when it acts (1) "in pursuit of the 'efficient procurement of needed goods and services'" or (2) with a sufficiently "narrow scope" so as to "'defeat an inference that its primary goal was to encourage a general policy rather than [to] address a specific proprietary problem.'" Here, King County has repeatedly stated that it adopted the Executive Order in response to perceived human rights abuses in the federal immigration system. That is the clear substance and tenor of the Executive Order and the County's many comments surrounding it. The County's broad objection to federal immigration policy does not reflect King County acting in the capacity of a market participant.
The County argues otherwise by claiming that it issued the Executive Order "due to its concerns about business disruptions and liability from potential protests on airport property." To begin with, there is a lack of evidence of such disruptions. Regardless, the County's claimed concerns about protests—which are referenced only obliquely in one small part of the Executive Order—cannot overcome the Order's overwhelming import. The Executive Order is based on King County's view that "deportations raise deeply troubling human rights concerns which are inconsistent with the values of King County." While King County and its leaders are entitled to hold that view, the obvious policy and regulatory basis for the Executive Order prevents King County from invoking the market participant doctrine, even assuming it could be invoked as a defense to otherwise improper discrimination against the federal government.
And the panel also concluded that King County's actions violated "a World War II-era contract reconveying 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, which, as relevant here, imposed terms and conditions for the use of airports that the United States granted to state or local governments after the war. When the United States conveyed Boeing Field to King County under the Act, the parties executed an "Instrument of Transfer." The Instrument of Transfer provided that "the United States of America … through any of its employees or agents shall at all times have the right to make nonexclusive use of the landing area of the airport at which any of the property transferred by this instrument is located or used, without charge." …
[T]he Executive Order violates this provision of the Instrument of Transfer. The Order precludes FBO services to ICE charter flights at Boeing Field, which effectively prevents ICE from using the airport. ICE charter flights are quite plainly flights of the United States through its agent, Classic Air Charter. The flights are also performing a quintessential function of the federal government. The ICE charter flights fit well within the plain language of the Instrument of Transfer and Surplus Property Act….
We reject the County's assertion that the Instrument of Transfer applies only to government-owned or leased aircraft, as opposed to charter flights. There is no basis for reading such a limitation into either the Instrument of Transfer or the Surplus Property Act.
McKaye L. Neumeister argued on behalf of the government.
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