In what Attorney General Bill Barr has called a “significant escalation,” the Justice Department is filing actions against sanctuary cities over what is alleged as interference with federal enforcement of immigration laws and removals. As discussed yesterday, both parties seems to be going “all in” on immigration from sharply opposing positions.
Suing sanctuary cities over ICE detainers is actually a difficult issue pitting state against federal authority. Many of these states maintain that they cannot be commandeered into working to enforce federal laws and that ICE should secure court orders. Barr specifically referred a lawsuit against New Jersey over its New Jersey Attorney General Law Enforcement Directive 2018-6, which the DOJ says illegally bars officials from sharing the immigration status and release dates of individuals in custody.
The strongest challenge could come in a separate lawsuit against King County over the King County Executive Order PFC-7-1-EO, which forbids DHS from deporting aliens from the United States using King County International Airport. The Justice Department is arguing the order conflicts with the federal Airline Deregulation Act, which “prohibits localities such as King County from enacting or enforcing laws or regulations that relate to prices, routes, or services of air carriers.” Like the other filings, the thrust of the claims is the Supremacy Clause and the argument that states must yield to proper federal authority. Under 49 U.S.C. § 41713(b)(1), federal law preempts state and local government in any laws or orders “related to a price, route, or service of an air carrier that may provide air transportation.”
The DOJ states that
The Airport EO has both the purpose and effect of prohibiting federal immigration authorities from using Boeing Field to remove individuals with final orders of removal from the United States or to transport immigration detainees within the United States. Since issuance of the Airport EO, fixed-base operators (“FBOs”) at Boeing Field, which provide basic aeronautical services to charter flight operators, no longer will service flights by U.S. Immigration and Customs Enforcement (“ICE”) Air Operations (“IAO”).
That is a cleaner shot for DOJ on supremacy grounds than the detainer issue which triggers cases involving “commandeering” and federalism.
Here is the King County complaint: DOJ/King CountyLawsuit
Here is the New Jersey complaint: DOJ/NJ lawsuit