by Bethany Blankley
The federal government has the authority to deport foreign nationals in the U.S. illegally over the objection of local authorities, a panel of three judges on the Ninth Circuit Court of Appeals unanimously ruled.
The 29-page ruling was written by Judge Daniel Bress, with judges Michael Hawkins and Richard Clinton concurring.
At issue is an April 2019 executive order issued by King County Executive Dow Constantine, which directed county officials to prohibit fixed base operators on a county airfield near Seattle from servicing U.S. Immigration and Customs Enforcement charter flights used to deport illegal foreign nationals.
Constantine’s order prohibited King County International Airport from supporting “the transportation and deportation of immigration detainees in the custody of Immigration and Customs Enforcement, either traveling within or arriving or departing the United States or its territories.”
The airport is located next to a major ICE-Seattle base of operations.
The Trump administration at the time sued, arguing Constantine’s order violated the Supremacy Clause’s intergovernmental immunity doctrine and a World War II-era Instrument of Transfer agreement allowing the federal government to use the airport in King County.
A district court agreed, ruling in favor of the federal government. King County next appealed to the Ninth Circuit.
The Ninth Circuit panel affirmed the district court’s summary judgment that the order violated the Supremacy Clause and the Instrument of Transfer agreement.
The panel also held that the federal government had Article III standing to sue and “had two related concrete and individualized injuries.” The first is “the inability to conduct the charter flights – which has increased ICE’s operational costs – constituted a de facto injury that affected the United States in a particularized, individual way” and “an imminent risk of future injury from the Executive Order.”
The second is the federal government’s injuries “were fairly traceable” and “are likely, as opposed to merely speculative,” as a result of the order. Were there no order, “an FBO would resume servicing ICE charter flights,” the court notes.
Constantine’s order violated the intergovernmental immunity doctrine because it “improperly regulated the way in which the federal government transported noncitizen detainees by preventing ICE from using private FBO contractors at Boeing Field, and on its face discriminated against the United States by singling out the federal government and its contractors for unfavorable treatment,” the court held.
With King County, as a so-called “sanctuary county,” Constantine argues its region “has acted decisively to become more inclusive, removing barriers to affordable housing, transit, health, economic opportunity and promoting strong childhood development for everyone.” The county has also set its “region apart as a leader in protecting the rights of all people in our communities, and continues to not tolerate discrimination, harassment, expressions of hate, or any behavior intended to promote fear, intimidation, or isolation,” he says.
Constantine’s argument was ideological, according to the order, stating federal “deportations raise deeply troubling human rights concerns which are inconsistent with the values of King County, including separations of families, increases of racial disproportionality in policing, deportations of people into unsafe situations in other countries, and constitutional concerns of due process.”
In response, the Department of Justice sued in February 2020, arguing his order was illegal, obstructed federal immigration enforcement and violated the Instrument of Transfer agreement under the Surplus Property Act of 1944. The Trump administration also sought to squash the executive order altogether and secure a permanent injunction against it.
A district court sided with the Trump administration, granted summary judgment. It held that Constantine’s order discriminated against ICE contractors while allowing others to use the airfield, and also violated the Instrument of Transfer.
King County appealed to the Ninth Circuit, arguing Constantine’s order was lawful.
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Bethany Blankley is a contributor to The Center Square.
Image “Dow Constantine” by Dow Constantine.
