SEATTLE — Federal Immigration and Customs Enforcement can move to resume flying chartered deportation flights out of Boeing Field, after a federal judge on Thursday struck down King County’s attempt to block ICE’s use of the county-owned airport.
But King County Executive Dow Constantine responded late Friday with a new executive order meant to continue barring deportation flights from using the airport.
Constantine, in 2019, issued an executive order intended to stop the federal immigration enforcement agency from using the airport for either deporting immigration detainees or transporting them within the country.
Prior to Constantine’s order, charter flight companies, hired by ICE, had regularly used King County International Airport (Boeing Field’s formal name) to fly immigrants to their home countries and to bring others in from around the country for incarceration at the Northwest Detention Center in Tacoma.
But the Justice Department, under the Trump administration, sued in 2020 to block Constantine’s order, arguing the county could not discriminate against federal contractors or impose obstacles to enforcing federal immigration laws.
Justice Department attorneys continued to pursue the lawsuit under the Biden administration.
U.S. District Judge Robert Bryan, on Thursday in Tacoma, ruled Constantine’s order is invalid because it violated the terms under which the federal government gave the airport back to the county back in 1948.
Constantine’s new order, issued late Friday, says Boeing Field cannot use “its discretionary resources to support the transportation and deportation of immigration detainees in the custody of ICE, either traveling within or arriving or departing the United States or its territories.”
But it creates exceptions, where required by federal law, Federal Aviation Administration regulations or the 1948 agreement.
It is unclear if and when ICE will resume using the airport for its contracted flights. ICE did not respond to requests for comment. The Justice Department declined to comment.
At least one of three private companies that service flights at Boeing Field must agree to resume servicing the deportation flights in order for them to resume.
“If the federal government insists on using our public airport for purposes that go against the County’s values, the public has every right to know. My order today continues the stance we took in the darkest days of the Trump administration and will ensure that we lead with our values,” Constantine said in a prepared statement.
Constantine’s 2019 executive order was timed to coincide with a report from the University of Washington’s Center for Human Rights, which found that deportation flights from Boeing Field carried roughly 34,000 people away over the preceding eight years.
The county, Bryan wrote, had learned 10 months earlier that ICE charter planes were using Boeing Field for deportations. County officials said they became concerned that the release of the UW report could lead to “protests and violent behavior” at the airport and felt the need to take action.
The 2019 executive order, in trying to comply with the county’s 1948 agreement, did not explicitly forbid ICE or its charters from using the airport. Rather, it said that future leases between the county and three private companies known as “fixed base operators” that service, fuel and maintain planes at the airport, would contain prohibitions on deportation flights.
Just as the 2019 executive order was going into effect, the last of the three fixed base operators at the airport that serviced the deportation flights announced that it would cease.
ICE looked into other regional airports to use for deportation flights: Seattle-Tacoma International Airport, Portland International Airport, an airport in Bellingham and Joint Base Lewis McChord, among others. All indicated they wouldn’t take ICE Air charter flights. Ultimately the flights shifted to the airport in Yakima.
The county argued, citing a doctrine with roots in the 10th Amendment, that the federal government had no authority to administer or enforce a federal immigration program. But Bryan ruled that the “anticommandeering doctrine,” as it’s known, doesn’t allow the county to block private charter plane companies from contracting with the federal government, even on county property.
And he ruled that the county’s workaround — going through the three fixed base operators — was functionally the same as banning the flights.
“It is clear that the FBOs’ decisions to stop servicing ICE Air charter flights were substantially motivated by the Executive Order,” he wrote.
Still, there remains no guarantee that any of the fixed base operators at the airport will contract with ICE going forward.
Bryan also delves into the history of Boeing Field in coming to his ruling.
“This case has its roots in World War II,” he begins.
In 1941, as the U.S. prepared for a worsening war, the federal government took over several properties around the country that were deemed strategically important. Among these was Boeing Field, which the federal government took over after the attack on Pearl Harbor. It made improvements to the airport and used it during the war.
When the war ended, the federal government and the county struck a deal to return the airport to local ownership.
The 17-page contract, signed in 1948, bound the U.S. and King County in a “series of permanent agreements.”
The county must use the airport for “public airport purposes for the use and benefit of the public, on reasonable terms and without grant or exercise of any exclusive right for use of the airport.” It requires the county to maintain the landing area “for the use and benefit of the public.”
With Constantine’s 2019 executive order, Bryan ruled, King County was no longer living up to its end of the seven-decade old deal.
“The restrictions in the Executive Order violated King County’s obligation to maintain Boeing Field as a public facility, not a facility where some users, such as ICE Air … were denied the use of the public facility,” he wrote.
Bryan also deeply explores the definition of “landing area,” before chiding the county: “Apparently, the definition of “landing area” was overlooked by the County in its preparation of the Executive Order,” he writes.
