[00:00:03] Speaker 04:
May it please the court, Shane Kramer, Brian Cave, Leighton Paisner on behalf of Appellants King County and King County Executive Dow Constantine.

[00:00:11] Speaker 04:
I'd like to reserve five minutes of my time for a bottle and I'll try to watch the clock.

[00:00:16] Speaker 04:
The district court aired in granting summary judgment in favor of the government on its instrument of transfer and intergovernmental immunity claims, particularly in the absence of an Article 3 case or controversy in this case.

[00:00:30] Speaker 04:
Most fundamentally, the government lacks standing to pursue any of its claims where it failed on summary judgment to set forth specific facts supporting traceability and redressability.

[00:00:41] Speaker 04:
The court's recent decision in Murthy is on point and instructive.

[00:00:45] Speaker 04:
There, the court reiterated that it's a bedrock principle that a federal court cannot redress injury that results from an independent action of some third party not before the court, and that courts should be reluctant to endorse standing theories that require guesswork as to how independent decision makers will exercise their judgment.

[00:01:05] Speaker 04:
Importantly, the court also reinforced that it's the government's burden as the plaintiff in this case to establish standing, and that it must do so in the manner and degree

[00:01:15] Speaker 04:
required at this stage of the litigation.

[00:01:17] Speaker 02:
That means that— Were there any mystery as to who was conducting these flights?

[00:01:24] Speaker 02:
Meaning the... Was there any mystery to the fact that the United States government had contracted with aviation organizations to conduct these flights, returning undocumented asylum seekers or others back to their country of origin?

[00:01:44] Speaker 04:
I think prior to that April timeframe,

[00:01:47] Speaker 04:
I think there was a mystery as to that.

[00:01:49] Speaker 04:
It was unclear how those flights were occurring, but by the time April of 2019 rolled around, I think people understood that.

[00:01:55] Speaker 02:
I haven't stated my question well.

[00:01:57] Speaker 02:
Let me try it again.

[00:01:58] Speaker 02:
Was there any mystery to the people that operated Boeing Field, King County Airport, that the United States was carrying out these flights using, in effect, subcontracts?

[00:02:10] Speaker 04:
That's not a mystery, is it?

[00:02:14] Speaker 04:
It was until sometime around April.

[00:02:17] Speaker 04:
Prior to that, maybe there was airport staff that might have known that, but the county as a whole didn't understand that they were going out or how they were going out.

[00:02:26] Speaker 02:
At the point in time when King County made the decision to tell these subcontractors, if I can call them that, to stop doing these flights,

[00:02:36] Speaker 02:
Was there any mystery as to the relationship between the subcontractors and the government of the United States?

[00:02:43] Speaker 04:
At that point in time, the county understood that the flights were conducted by subcontractors.

[00:02:47] Speaker 02:
Thank you.

[00:02:47] Speaker 04:
But I would disagree that the county ever instructed that the contractors stop servicing the flights.

[00:02:54] Speaker 02:
What did King County do?

[00:02:56] Speaker 04:
King County issued an executive order that had no present legal effect had no effect whatsoever and the evidence on that and that's sort of immediate practical effect, right?

[00:03:05] Speaker 04:
I mean based on the testimony of modern to say well when we were formed of this we then changed our We changed doing business with ice Modern's modern testimony is actually different than that modern's testimony is that when they started to get press calls because the media was reporting on the UW

[00:03:23] Speaker 04:
Report that on its face accused the county and modern of collaborating with ice That's when modern decided for its own business reasons to stop servicing the flights and that the the record evidence on that starts to appear at er 494 where modern says that it chose to stop servicing flights without any input from the county and

[00:03:50] Speaker 04:
Modern knew that the EO didn't require it to stop servicing flights.

[00:03:54] Speaker 04:
That's at ER 385 and 389.

[00:03:56] Speaker 04:
The county never asked Modern to stop servicing the flights.

[00:03:59] Speaker 04:
That's at ER 523.

[00:04:02] Speaker 04:
And Modern kept servicing the flights after the EO was executed.

[00:04:07] Speaker 04:
Modern knew it could do it.

[00:04:08] Speaker 04:
The county didn't complain because the county wasn't trying to stop the flights.

[00:04:12] Speaker 01:
That's at ER 630.

[00:04:13] Speaker 01:
What about the testimony

[00:04:15] Speaker 01:
from the modern representative that said, if not for the executive order, modern would have continued servicing ICE.

[00:04:21] Speaker 04:
That's the only evidence that the government has.

[00:04:24] Speaker 04:
And they ignore.

[00:04:25] Speaker 03:
How much more do you need?

[00:04:26] Speaker 03:
I mean, stop right there.

[00:04:28] Speaker 03:
How much more do you need if you've got the corporate representative saying that that's why they stopped the flights?

[00:04:36] Speaker 03:
Because you may argue that that shouldn't be believed and so forth.

[00:04:41] Speaker 03:
But for a standing objection,

[00:04:45] Speaker 04:
To two points there, the modern representative then clarified, question, now that you've seen the UW report, the report that was issued the same day that accused modern of collaborating, now that you've seen the UW report again, is it still your view that it was the executive order that was the impetus for the potential threat of protests at Boeing Field?

[00:05:05] Speaker 04:
answer, I would say that it may not have been the only cause.

[00:05:09] Speaker 03:
Wait, wait, wait.

[00:05:10] Speaker 04:
Sorry about that.

[00:05:11] Speaker 03:
Is the emphasis for what?

[00:05:14] Speaker 03:
Not for the secession of the flights, but for the protests.

[00:05:18] Speaker 03:
Well, that's a big leap.

[00:05:20] Speaker 03:
Let me put it to you this way.

[00:05:23] Speaker 03:
Since the entry of the injunction by the district court, have flights resumed?

[00:05:29] Speaker 04:
We've moved to strike that because it's not relevant to redressability or causation.

[00:05:33] Speaker 03:
I've asked a question.

[00:05:34] Speaker 03:
Yes, they have.

[00:05:34] Speaker 03:
Have flights resumed?

[00:05:35] Speaker 04:
And yes, they have.

[00:05:36] Speaker 03:
Well, that makes this whole argument to me sort of preposterous.

[00:05:41] Speaker 03:
Because if the flight stopped after the executive order was entered and the flights resumed after the injunction was entered, it's hard not to accept that there's a connection between the executive order and the cessation of flights.

[00:05:54] Speaker 04:
Murthy speaks to this, that where there are potentially independent impetuses, you need to view it in light of all of the other potential causal factors.

[00:06:07] Speaker 04:
And they say that's important because the whole purpose of the traceability requirement is to ensure that, in fact, the asserted injury was the consequence of the defendant's actions rather than of the independent action of third party.

[00:06:20] Speaker 04:
And to go back to Your Honor's question about protests,

[00:06:25] Speaker 04:
That's the only link that the government can draw, is that the EO caused the protests, caused the... Well, no, you can draw a more direct link than that.

[00:06:35] Speaker 03:
The EO says, don't sign up for renewals of lease or future leases if you can have these immigrant flights.

[00:06:46] Speaker 03:
The contractor had leases.

[00:06:49] Speaker 03:
It gets kind of confusing, and I'm lost in the morass, but had multiple leases, at least one of which seemed to be coming up for renewal within the next year.

[00:06:58] Speaker 04:
And that's a lease for a different piece of property.

[00:07:02] Speaker 04:
that didn't have anything to do with where it serviced its rights.

[00:07:05] Speaker 03:
That doesn't mean the contractor didn't want to have that lease renewed and had reason to fear that it couldn't get that lease renewed if it didn't adhere to the standard that the county executive sought to impose upon it.

[00:07:19] Speaker 04:
But again, the modern witness testified clearly that the issue they were most concerned about was press and protesters.

[00:07:28] Speaker 04:
That was our primary concern.

[00:07:30] Speaker 04:
Modern knew it could continue doing the flights.

[00:07:33] Speaker 04:
And modern subjective third party fears, the Supreme Court in Clapper rejected that as a basis for finding traceability in these third party causation cases.

[00:07:45] Speaker 04:
This court, and we submitted a supplemental authority, agreed with that last week in an unpublished opinion, the Iran decision.

[00:07:54] Speaker 04:
But it's clear that those third-party fears aren't based in the actual legal effect of the EO.

[00:08:02] Speaker 04:
And Modern's contemporaneous documents stress that it's important that the protesters understand that we aren't involved in these flights going forward, so we don't get any more protests or bad publicity.

[00:08:16] Speaker 04:
At the end of the day, it was our decision to stop accepting these flights.

[00:08:20] Speaker 04:
And that's a decision we made as a company for a variety of reasons.

[00:08:25] Speaker 04:
there were business reasons that you need to untangle to figure out what caused this.

[00:08:31] Speaker 04:
And the Novak case from this circuit sets the standard clearly that if there's evidence that the third parties may well have engaged in the activity, you don't have traceability as a matter of law.

[00:08:48] Speaker 04:
Now, if you move to redressability, the Murthy case also speaks to that.

[00:08:54] Speaker 04:
When you have multiple potential independent causes, which is what you have here, redressability is no longer the flip side of the coin to traceability or causation.

[00:09:09] Speaker 04:
even if you could trace the action potentially to the government action, there could be several reasons why that third party might not change course.

[00:09:22] Speaker 02:
If we dissolved the injunction, is ICE free to contract with another subcontractor for removal flights out of Boeing Field?

[00:09:34] Speaker 02:
Can I finish my question before you interrupt me?

[00:09:39] Speaker 02:
Are they, would that, in that circumstance, would they be free?

[00:09:43] Speaker 04:
Yes.

[00:09:44] Speaker 02:
The United States could hire another contractor and immediately begin removing aliens from Boeing Field.

[00:09:55] Speaker 04:
Yes, if the court were to remand this case, my expectation is that Signature would continue doing the flights and the county has no objection to that because the EO has no present effect.

[00:10:08] Speaker 04:
The EO doesn't preclude the county's... Here's what the EO says.

[00:10:19] Speaker 02:
Ensure that all future leases, operating permits, and other authorizations for commercial activity at Boeing Field contain a prohibition against providing aeronautical or non-aeronautical services to enterprises engaged in the business of deporting immigrant detainees to the maximum extent permitted by applicable law.

[00:10:46] Speaker 04:
Signature, Kenmore, Modern all have long-term leases under which any of them is currently free to provide these services to the charter companies.

[00:11:00] Speaker 04:
The EO did not stop any of them.

[00:11:03] Speaker 01:
Hasn't the county said it would resume the process of implementing the EO if anybody did that?

[00:11:09] Speaker 04:
But implementing the EO, and this is where it falls apart, is implementing the EO only means that in the future, in 2046, it might require, if it hasn't been rescinded by then, or politics haven't changed, or the need, the proprietary need hasn't changed, might take a different tact.

[00:11:31] Speaker 02:
Until then.

[00:11:31] Speaker 02:
What do you mean by if politics changed?

[00:11:35] Speaker 04:
I meant if a different, there's a different executive who might have different needs or if the proprietary need for the disruptions is gone.

[00:11:46] Speaker 04:
But that's the point is the future, the present effect, what your honor was talking about with moving forward with implementing, implementing only means

[00:12:01] Speaker 04:
Acting in the future when these leases are up and read this as being something that's going to be relevant in 25 years And and that goes to injury in fact that goes to causation and so if the county's position This doesn't have any present impact.

[00:12:17] Speaker 03:
Why is the county fighting so hard to retain it?

[00:12:22] Speaker 04:
Because it's an important directive that the county has implemented.

[00:12:26] Speaker 03:
So on the one side, you're telling us it doesn't have any impact, it's not worth the paper it's written on, and the other side, you're telling us it's an important directive.

[00:12:34] Speaker 03:
It can't be both.

[00:12:37] Speaker 04:
It's both because it, one, sets the important policy aims of the... The county can proclaim its aims all at once.

[00:12:47] Speaker 03:
Here, in this order, it appears to be trying to be using its authority to implement

[00:12:54] Speaker 03:
its authority as the operator of the airport to prevent the government, the federal government, from conducting these flights.

[00:13:02] Speaker 03:
And you may argue to us, well, it doesn't really have any impact.

[00:13:07] Speaker 03:
But that doesn't seem consistent with the effort being made to issue it and to defend it now.

[00:13:14] Speaker 03:
Either it has an impact or it doesn't.

[00:13:16] Speaker 03:
If it doesn't have an impact, then why do you care?

[00:13:18] Speaker 03:
If it does have an impact, then isn't that why we're here?

[00:13:22] Speaker 04:
It was issued because there was serious, serious and significant concern that modern also shared, independent of the county, that they had been accused of collaborating with ICE and they were afraid that the same type of protest that took over CTAC, that took over the Northwest Detention Center that occurred throughout Seattle would be aimed at- Can you point to me, point me to things in the executive order?

[00:13:52] Speaker 03:
that suggests that it wasn't implemented because of the county executive's hostility toward the action being taken by ICE in deporting unlawful aliens.

[00:14:09] Speaker 03:
As the extinguisher, oh, this is all defense.

[00:14:11] Speaker 03:
We can't afford to put more than a couple of law enforcement officers there, so we're going to shut down the operation because we're afraid of protests.

[00:14:19] Speaker 03:
I mean, I read the executive order.

[00:14:21] Speaker 03:
It sure doesn't leave me with the impression that this is a self-defense mechanism as opposed to this is a political statement, which you suggested yourself in your reference a few minutes ago.

[00:14:33] Speaker 03:
It's an effort by the county executive to make a political statement to curry favor with a certain sentiment among the electorate.

[00:14:44] Speaker 03:
So what in the executive order should make me read it the way that you want me to read it now, as opposed to the way it seems to be making a political statement?

[00:14:50] Speaker 04:
At the bottom of ER 624, there's a whereas clause that speaks specifically to the use of King County International Airport in this manner would be detrimental to the public welfare.

[00:15:02] Speaker 04:
and could adversely affect the willingness or ability of other persons to use or engage in business at King County International Airport.

[00:15:11] Speaker 03:
So the second half of the sixth whereas clause is what you point to.

[00:15:14] Speaker 03:
How about the whereas clauses before that or the first half of that one?

[00:15:18] Speaker 04:
This circuit has recognized that you can have a policy motivation in engine manufacturers.

[00:15:26] Speaker 04:
They list all manner of market participant proprietary acts that you can take as the owner and operator of an airport that's in Lawa, but relying on engine manufacturers saying, you can have both.

[00:15:41] Speaker 04:
And as long as it's narrow in scope and it deals with your property, you're acting as a market participant, and that doesn't invalidate

[00:15:48] Speaker 04:
the proprietary nature of the concerns that you have.

[00:15:52] Speaker 04:
And going to one last point on redressability, it is measured as of February 2020 when the case was filed, not today.

[00:16:01] Speaker 04:
Any inferences that are gonna be drawn from the fact that flights have picked back up should be drawn in favor of the county because the EO did not preclude any FBO from servicing those flights in 2020.

[00:16:16] Speaker 04:
They could have started back up then.

[00:16:18] Speaker 04:
fact that they chose not to.

[00:16:20] Speaker 04:
as is the same as every other FBO and airport in all of Western Washington refused to pick up these flights because of the reasons totally unrelated to the executive order, because none of those airports or FBOs operated at King County and were subject to the executive order.

[00:16:37] Speaker 04:
And then the court has- Pay some time for rebuttal.

[00:16:38] Speaker 04:
I didn't mean to cut you off there.

[00:16:39] Speaker 04:
No, that's fine.

[00:16:40] Speaker 04:
Please go ahead and finish the thought if you like.

[00:16:42] Speaker 04:
I was just going to point the court to Tucson v. City of Seattle earlier this year that says redressability is measured at the time.

[00:16:48] Speaker ?:
Thank you.

[00:17:02] Speaker 02:
There's a button on that podium if you want to lower it.

[00:17:05] Speaker 02:
You don't have to.

[00:17:06] Speaker 00:
I think I'm all right, Your Honor.

[00:17:09] Speaker 00:
Can you hear me okay?

[00:17:09] Speaker 00:
Okay.

[00:17:10] Speaker 00:
Great.

[00:17:10] Speaker 00:
Thank you.

[00:17:11] Speaker 00:
May it please the court, McCain Neumeister, on behalf of the United States.

[00:17:15] Speaker 00:
The district court properly determined that it had jurisdiction to hear this case and correctly invalidated the executive order because it violates both the instrument of transfer conveying ownership of Boeing Field to the county and the Supremacy Clause.

[00:17:29] Speaker 00:
Now, on standing, the district court correctly found that the government demonstrated standing because it has already been injured due to the executive order and will be injured by the order in the future in a clear and predictable way.

[00:17:40] Speaker 00:
For similar reasons, the case is ripe, and on the merits, the county's efforts to block immigration flights at Boeing Field by preventing ICE from using charter contractors and FBO services to carry out its transport operations clearly runs afoul of both the county's obligations in the instrument of transfer and the doctrine of intergovernmental immunity.

[00:18:00] Speaker 01:
The redressability, causation, traceability.

[00:18:02] Speaker 01:
Your friend on the other side says this is essentially an independent business decision by the FBOs.

[00:18:08] Speaker 01:
How do you address that point?

[00:18:09] Speaker 00:
So under Mendia v Garcia, this court explained that when you have third parties, the entity trying to establish standing has to show that the action being challenged was at least a substantial factor motivating the action of a third party.

[00:18:25] Speaker 00:
And the district court

[00:18:27] Speaker 00:
surveying the record concluded that that test was satisfied here because modern's representative clearly testified that the executive order was a but for cause in its decision to stop servicing these flights and that's at record three er 391 where modern testifies that

[00:18:45] Speaker 00:
if not for the executive order, it would have continued servicing ICE air flights.

[00:18:50] Speaker 00:
And that's sufficient to demonstrate causation in this case.

[00:18:55] Speaker 00:
And redressability is satisfied as well, because given that it was a but for cause of stopping servicing these flights, removing the impediment would have a predictable effect on the fixed base operators, such that they are likely to redress the error by resuming services again.

[00:19:13] Speaker 01:
Mr. Kramer pointed to the Supreme Court's recent decision in Murthy.

[00:19:17] Speaker 01:
So how would you say that one is that case different than this one?

[00:19:21] Speaker 00:
Yes, Your Honor.

[00:19:22] Speaker 00:
The facts in Murthy are very different than the facts we have here.

[00:19:25] Speaker 00:
The social media platforms, which were the third parties in that case, had independent policies that caused them to moderate content.

[00:19:32] Speaker 00:
And even before the government got involved in talking to the platforms,

[00:19:37] Speaker 00:
about content moderation with respect to various topics.

[00:19:40] Speaker 00:
Before the government had any communications with them, those platforms were already moderating the content at issue, plaintiffs there were not able to show a sufficient connection between the government's involvement

[00:19:52] Speaker 00:
and the decisions to moderate specific speech, specific content on those platforms.

[00:19:59] Speaker 00:
Here we have a very clean connection.

[00:20:00] Speaker 00:
On summary judgment, we have testimony from the third party that the executive order was a but for cause in their decision to stop servicing these flights.

[00:20:11] Speaker 01:
Mr. Kramer also referenced the idea that what was contemplated in the executive order was something that would happen sometime in the future.

[00:20:19] Speaker 01:
It wasn't a here and now thing.

[00:20:21] Speaker 01:
How does the government address that point?

[00:20:23] Speaker 00:
Yes, Your Honor.

[00:20:24] Speaker 00:
So the express purpose of the executive order was to stop these flights.

[00:20:30] Speaker 00:
It's titled A Prohibition on Immigrant Deportations.

[00:20:33] Speaker 00:
It was the express purpose, and it was the effect.

[00:20:35] Speaker 00:
And if you look at the directives in the executive order, it's clear that the purpose of these directives is to stop these flights sooner or later.

[00:20:44] Speaker 00:
In paragraph 3, it talks about inserting prohibitions into existing leases.

[00:20:49] Speaker 00:
But if you look at paragraph 4, it directs officials

[00:20:53] Speaker 00:
to amend relevant regulations so that it can enforce this policy against current leases as well.

[00:21:01] Speaker 00:
So there's no waiting for 2046 until a long-term lease is up.

[00:21:06] Speaker 00:
The county officials are directed to find a way to enforce this policy against current leases.

[00:21:11] Speaker 00:
And as Your Honors noted in talking to my friend on the other side, there was a lease that Modern had that was up for renewal one year later.

[00:21:19] Speaker 00:
And so this was not a far in the future

[00:21:22] Speaker 02:
Scenario they were imminently facing the prospect that they would have to put this prohibition in one of their leases at the airport was modern asked in discovery What would happen if the county rescinded the executive order?

[00:21:39] Speaker 00:
I'm not aware that they were your honor, okay But ultimately their testimony is sufficiently clear I just wondered

[00:21:51] Speaker 00:
I don't believe the question was asked in quite that way, but they made it clear on page 391.

[00:21:55] Speaker 00:
I referenced that this was a but for cause of the decision to stop the flights.

[00:22:00] Speaker 00:
And my friend on the other side talks about these independent reasons and the protest risk.

[00:22:06] Speaker 00:
I encourage your honor to actually look at the record.

[00:22:08] Speaker 00:
It doesn't describe those as independent reasons.

[00:22:10] Speaker 00:
It talks about a number of factors for this decision.

[00:22:12] Speaker 00:
And as the district court concluded after surveying the record,

[00:22:15] Speaker 00:
Even though there was protest risk, there might have been other factors as well.

[00:22:19] Speaker 00:
The executive order was at least a substantial factor motivating their decision, which is all that's required for purposes of standing.

[00:22:26] Speaker 02:
How much time elapsed between the issuance or publication of the Washington Center for Human Rights study and the signing of this executive order?

[00:22:40] Speaker 00:
So I believe the county undertook to issue the executive order after they received notice that Washington was going to be issuing this study.

[00:22:48] Speaker 00:
I believe that the county ultimately was able to issue the executive order first and that the study came out a day later.

[00:22:55] Speaker 00:
But I'm not 100% on that, Your Honor, but I think that's what the record reflects.

[00:23:00] Speaker 02:
My notes say that the report was issued in April of 2019.

[00:23:06] Speaker 00:
Yes, I think that's right.

[00:23:08] Speaker 02:
And that the executive order was signed a few days later.

[00:23:11] Speaker 00:
I'm not sure exactly the timing, Your Honor.

[00:23:14] Speaker 00:
It was a couple days in one direction or another.

[00:23:16] Speaker 00:
I know that the county was told by UW that it was going to be issuing this report, and so the county then undertook to issue this executive order shortly following or simultaneous with that report to take action here.

[00:23:30] Speaker 00:
Again, the express purpose of this order was to express disapproval of these flights, to attempt to prohibit the flights, and the county did it through the means that they had available, which was to deprive these flights of fixed-based services.

[00:23:45] Speaker 00:
your honor, on the merits, that's simply not something that the county is entitled to do, both under the instrument of transfer and under intergovernmental immunity.

[00:23:54] Speaker 00:
Under the instrument, the government cannot make use of the airport, rather ICE air flight specifically, cannot make use of this airport without the use of fixed-based services.

[00:24:03] Speaker 00:
The district court recognized that

[00:24:06] Speaker 00:
Anything from parking to having access to maintenance fueling stairs so that individuals can can Get on the plane and get off the plane all those things require fixed-based services for ice to actually meaningfully use this airport There were some jurisdictional type arguments made on this point as any court addressed any of these I didn't not sure I saw that in the briefing I

[00:24:27] Speaker 00:
I'm not aware, Your Honor.

[00:24:28] Speaker 00:
My friends on the other side cite some cases, but those cases don't squarely address whether the provision that we're talking about, 47-151B, is a jurisdiction stripping provision.

[00:24:39] Speaker 00:
And if you look at the Supreme Court's decision in Patchak v. Zinke, for instance, all the relevant factors indicate that this is not a jurisdiction stripping provision.

[00:24:50] Speaker 01:
What would be the implication if it were?

[00:24:52] Speaker 01:
Who would be dealing with this issue?

[00:24:54] Speaker 01:
It would just be an agency issue?

[00:24:56] Speaker 00:
That's my understanding of what the county is arguing, Your Honor.

[00:25:00] Speaker 00:
But there's simply no jurisdiction stripping here.

[00:25:04] Speaker 00:
We have the general availability of federal question jurisdiction in suits brought by the United States to pursue this action, and there's no reason that this issue needs to be heard specifically in administrative proceedings first.

[00:25:19] Speaker 01:
On the supremacy clause argument, your friends on the other side raise a commandeering defense, essentially.

[00:25:26] Speaker 01:
Can you respond to that?

[00:25:27] Speaker 00:
Yes, your honor.

[00:25:28] Speaker 00:
The circumstances of this case are fundamentally different than circumstances that implicate commandeering.

[00:25:34] Speaker 00:
Here, the county is not being forced to affirmatively implement a federal program.

[00:25:40] Speaker 00:
They're merely being asked to stop affirmatively obstructing that program, which under the assurances clause, they don't have any right to do that.

[00:25:51] Speaker 00:
Being told that

[00:25:52] Speaker 00:
They have to adhere to their deed of transfer and the supremacy clause and not affirmatively attempt to prohibit these flights, which is the stated purpose of the order, is not equivalent to commandeering the county's resources to implement an immigration program.

[00:26:06] Speaker 01:
Does the county have to expend any resources in accommodating these kind of flights at the airport?

[00:26:14] Speaker 00:
Whether or not they do that is not the same as being commandeered, Your Honor.

[00:26:20] Speaker 00:
Responding to federal conduct is not the same as being forced to implement a federal program.

[00:26:27] Speaker 01:
Is there some level of support at the airport if they were directed to provide extensive security or some other things like that that would rise to the level of commandeering if there were things unique to these ICE flights?

[00:26:40] Speaker 01:
I'm just trying to understand what the line is between essentially

[00:26:43] Speaker 01:
accommodating lots of people at the airport including ICE and maybe having to take additional steps to ensure that the ICE flights are successful.

[00:26:53] Speaker 00:
If there was a scenario where the government was saying to the county that they were obligated to take these steps, that it was part of this immigration program is that the county is forced to support the program through local law enforcement in specific ways, that would be a very different set of facts than what we actually have here, where the county is claiming that it does have to provide certain

[00:27:19] Speaker 00:
law enforcement or security support, but that's its response to federal activity.

[00:27:25] Speaker 00:
If the president of the United States were visiting Seattle and decided to fly into Boeing Field and the county decided to provide additional law enforcement support to secure the airport, you wouldn't say that the president was commandeering the county.

[00:27:39] Speaker 00:
That's simply not what's going on.

[00:27:40] Speaker 00:
The county's response to federal activity is not the same as being forced to implement a program.

[00:27:51] Speaker 00:
I'm happy to answer any other questions that the court may have, but it's clear based on the record in this case that there is standing because the executive order was a but for cause in Modern's decision to stop servicing these flights, that the order, when implemented, and as Your Honors noted,

[00:28:11] Speaker 00:
The county testified that the only reason it did not move forward with implementation is because the flight stopped, because the executive order was so successful, ultimately they didn't have to move forward with it.

[00:28:23] Speaker 00:
But that's no reason to say that there's no jurisdiction for hearing a challenge to the clear directives in this executive order.

[00:28:32] Speaker 00:
On the merits, as we've discussed, there's simply no constitutional authority or other authority for the county to attempt to block these flights.

[00:28:41] Speaker 00:
It runs afoul of both the instrument of transfer and the doctrine of integral hormonal immunity.

[00:28:48] Speaker 00:
So if there are no further questions, we would ask this court to affirm.

[00:28:53] Speaker 00:
Thank you.

[00:28:53] Speaker 01:
Thank you.

[00:29:00] Speaker 04:
Good morning.

[00:29:01] Speaker 04:
I'd like to respond quickly to a few of the things that were raised.

[00:29:06] Speaker 04:
One, Mendea isn't the right standard.

[00:29:08] Speaker 04:
It's Novak.

[00:29:09] Speaker 04:
This is a Novak, Murthy case.

[00:29:12] Speaker 04:
Mendea deals with when you have one chain of causation and you need to have a substantial cause as part of that one chain.

[00:29:19] Speaker 04:
This is a case about independent causes.

[00:29:22] Speaker 04:
On redressability, it's not enough that it was predictable that an FBO might take up the flights.

[00:29:31] Speaker 04:
Under Novak and the circus precedent, you need to have shown that there would be a change in legal status.

[00:29:37] Speaker 04:
There was no change in legal status because the executive order didn't have any legal effect.

[00:29:41] Speaker 02:
Let me ask you what I asked Council of the government.

[00:29:46] Speaker 02:
In discovery, did you or anyone else ask Modern what would happen if the county rescinded the executive order?

[00:29:54] Speaker 04:
No.

[00:29:55] Speaker 04:
The government deposed Modern for a full day, didn't ask that question because they likely didn't want to know the answer that they were going to get.

[00:30:03] Speaker 02:
Nor did your side.

[00:30:04] Speaker 04:
We don't have the burden.

[00:30:06] Speaker 04:
We knew.

[00:30:07] Speaker 04:
We knew that Modern had independent reasons for stopping the flights.

[00:30:12] Speaker 04:
You asked about the dates.

[00:30:14] Speaker 04:
It was issued April 23rd.

[00:30:16] Speaker 04:
That's at 563.

[00:30:18] Speaker 04:
on commandeering.

[00:30:21] Speaker 04:
Commandeering is not just asking personnel to do something.

[00:30:23] Speaker 04:
Commandeering is also making you use your property, your facilities to support the government's immigration program.

[00:30:32] Speaker 04:
That's McHenry.

[00:30:34] Speaker 04:
That's this court's decision in California.

[00:30:37] Speaker 04:
If in Prince it was overstepping to make a police officer do a background check,

[00:30:43] Speaker 04:
It is certainly overstepping to require that the county allow its facilities to be used for detention purposes.

[00:30:53] Speaker 04:
The detainees are still part in the detention system.

[00:30:57] Speaker 04:
And so there's no difference here from McHenry or California on the intergovernmental immunity basis and on the instrument of transfer issue.

[00:31:08] Speaker 04:
All of the evidence submitted to this court demonstrates that the county's interpretation of the instrument of transfer is correct.

[00:31:18] Speaker 04:
The House and Senate reports in favor of the Surplus Property Act make clear that when it says government use, it means government aircraft.

[00:31:28] Speaker 04:
That language is used specifically in the reports.

[00:31:31] Speaker 04:
It's later used by Congress in the airport improvement program, which deals with grant assurances, which

[00:31:36] Speaker 04:
is deals with the same subject matter as the SPA.

[00:31:41] Speaker 04:
So you interpret the terms identically and consistently.

[00:31:44] Speaker 04:
The FAA has defined that to mean government owned or operated aircraft, which everybody acknowledges these weren't.

[00:31:53] Speaker 02:
How long have these flights been going on before the executive order?

[00:31:56] Speaker 04:
They had been going on.

[00:31:58] Speaker 04:
I believe it's in the record since 2005 or before and that and that goes to show the proprietary reasons for adopting this.

[00:32:07] Speaker 04:
It was not about the flights necessarily.

[00:32:10] Speaker 04:
It was about the fear of the protesters and the disruption and the damage to property.

[00:32:16] Speaker 04:
once the county was accused of collaborating with ICE, which the Supreme Court said in Murphy, is one of the primary reasons why the anti-commandeering doctrine exists, to avoid and allow states and localities to withdraw themselves because of that blurred line, those blurred lines.

[00:32:36] Speaker 01:
how the order reads.

[00:32:38] Speaker 01:
I mean, there's a reference to that.

[00:32:39] Speaker 01:
But most of this is about a particular stance on the government's policies, viewing it in terms of human rights.

[00:32:47] Speaker 01:
So it seems much broader than just this concern about disruption at the airport.

[00:32:52] Speaker 04:
It had two purposes.

[00:32:54] Speaker 04:
I will acknowledge that.

[00:32:56] Speaker 04:
But it can.

[00:32:57] Speaker 04:
And especially when it had no teeth.

[00:33:01] Speaker 04:
It was a policy statement intended to hope that it prevented the disruptions at the airport.

[00:33:07] Speaker 04:
It was successful in that.

[00:33:08] Speaker 04:
And that's why it's not the cause of modern stopping the FBOs.

[00:33:13] Speaker 04:
It was actually trying to accomplish the same thing that modern was, which was

[00:33:16] Speaker 04:
make sure that nobody's billion-dollar planes got destroyed because everybody rushed the airport on May Day when the anarchists come.

[00:33:26] Speaker 04:
That's just it.

[00:33:31] Speaker 01:
We've let you go a little bit over your time, and I want to thank you both for your briefing and argument this morning, and this case is submitted.