Last week, in United States v. King Cnty., No. 23-35362 (9th Cir. Nov. 29, 2024) and State of Texas v. U.S. Dep’t of Homeland Security, No. 23-50869 (5th Cir. Nov. 27, 2024), the Fifth and Ninth Circuits follow different paths on the scope of intergovernmental immunity to insulate federal agency actions to enforce federal immigration law.
The Ninth Circuit case takes the more conventional view of that doctrine.
“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 United States sued the county, arguing (among other things) that the Executive Order violated the intergovernmental immunity doctrine, which broadly prevents state and local governments from interfering with federal law enforcement. “The United States sought a declaratory judgment invalidating the Executive Order and a permanent injunction barring its enforcement.” The district court indeed enjoined enforcement of the Executive Order.
The Ninth Circuit affirms. After concluding that the United States has Article III standing and that its claims are ripe, the panel first holds that the Executive Order violates an Instrument of Transfer executed in 1948 when the federal government transferred the airfield to King County after World War II. “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.’ See 49 U.S.C. § 47152(6).”
“But even setting aside the Instrument of Transfer, King County’s Executive Order also fails under the intergovernmental immunity doctrine. This doctrine is an outgrowth of the Constitution’s Supremacy Clause . . . . In recognition of the federal government’s independence from state control, the intergovernmental immunity doctrine prohibits states from ‘interfering with or controlling the operations of the Federal Government.’”
The panel holds that the Executive Order impinges on intergovernmental immunity in two 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.” The panel observes that “[a]ny state regulation that purports to override the federal government’s decisions about who will carry out federal functions runs afoul of the Supremacy Clause.” The Executive Order effectively granted authority to King County officials to control ICE flights, by the experience of controlling the FBOs.
“Second, . . . . King County’s Executive Order on its face discriminates against the United States ‘by singling out the federal government and its contractors,’” because “the only entity in the business, so to speak, of deporting immigration detainees, is the federal government.” Meanwhile, “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.”
The panel also rejects the county’s argument that the Executive Order was protected by the “market participant doctrine” that permits incidental regulation of federal agents where the state or local government “buys services or manages property as a private party,” here by operating the local airport. While the county argued that it issued the Executive Order “due to its concerns about business disruptions and liability from potential protests on airport property,” the Ninth Circuit holds that the record conclusively shows that the county’s purpose was to interfere with national immigration policy, while conversely there was no record that the county was genuinely concerned about commercial service disruptions.
Yet while ICE can resume its flights in Seattle, Border Patrol agents in Texas will find themselves operating under a fresh injunction from the Fifth Circuit.
At the Texas border, reportedly up to one quarter of all migrants enter the USA through the city of Eagle Pass in Maverick County. “By September 2023, Texas had installed over 29 miles of c-wire in this area, much of which Texas laid ‘along several sections of [the] riverfront.’” Supposedly though, as part of a plan to route migrants to the nearest USA processing center, Border Patrol agents cut holes through the c-wire to allow migrants to pass through.
To stop further damage to the fences, Texas sued the United States and other federal defendants in federal court alleging Texas state-law “common law conversion, common law trespass to chattels,” plus “violations of the APA [Administrative Procedure Act].”
The district court denied Texas a preliminary injunction against the federal government, solely based on sovereign immunity. In the judge’s findings, though, the court would have rejected the United States defense that Border Patrol was “justified in cutting the c-wire either to detain aliens or prevent emergencies” as authorized by 8 U.S.C. § 1357(a)(3) of the Immigration and Nationality Act. Instead, the court found that Defendants cut the wire “for no apparent purpose other than to allow aliens easier entrance further inland.”
The Fifth Circuit, in a 2-1 decision, imposes the injunction that the district court denied. It holds, principally, that the USA waived sovereign immunity under § 702 of the APA.
The panel majority goes on to hold that intergovernmental immunity did not protect the Border Patrol agents’ actions from the reach of state law. It approves the very “market participant doctrine” argument that the Ninth Circuit rejects, taking a bold view of what is covered by that defense. “Texas is not seeking to ‘regulate’ Defendants merely by suing to prevent trespass and property damage . . . . Rather, Texas seeks to enforce generally applicable state tort laws against trespass and conversion.”
Even without “market participant” argument, though, the panel majority approves the broader notion that “generally applicable state laws can apply to federal agents” (citing some case authority more than a century old) and that “the key question is whether state law seeks to improperly ‘control’ the employee’s federal duties.”
Here, the panel majority conceives of the Border Patrol’s duties as confined by the four corners of § 1357(a)(3), that gives Border Patrol agents within 25 miles of the USA border “access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.” The panel majority holds that the cutting of the c-wire does not prevent illegal entry, but if anything facilitates it. (Ed. note: the panel majority thus, in few lines, sweepingly determines how agents should prevent illegal entry.) “At most, Texas’s suit incidentally impacts how Defendants carry out their duties under § 1357(a)(3).”
Judge Ramirez, dissenting, would deny the injunction. Among other things, the dissent challenges the panel’s narrow construction of intergovernmental immunity. “[E]nforcing Texas tort law against Defendants constitutes an effort to control federal operations. The tort law Texas seeks to apply bears directly on how Defendants execute the laws they are charged with implementing. The relief Texas requests—enjoining Defendants from cutting Texas’s fencing—has the direct effect of ‘restrain[ing] or control[ling]’ Defendants’ immigration-enforcements efforts.”
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