Today, Oregon voters said no to a measure that would have overturned the state’s 31-year-old immigration “sanctuary state” law. The rejection means the state will continue its long-standing policy of refusing manpower or resources to help enforce federal immigration laws in most situations.
Originally passed in 1987, House Bill 2314 reads, in part:
No law enforcement agency of the State of Oregon or of any political subdivision of the state shall use agency moneys, equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws.
It passed 54-3 in the state House and 29-1 in the Senate before being put into effect with the Governor’s signature. It was the first law of its kind in the United States.
There have been a number of attempts over the years to amend or repeal the law, and the latest was Measure 105, which made it to today’s ballot. The measure, if passed, would have resulted in a clean repeal of the state law, Oregon Revised Statute 181A.820, which “forbids state agencies, including law enforcement, from using state resources or personnel to detect or apprehend persons whose only violation of the law is that of federal immigration law.”
The measure failed to pass by a margin of 37-63% (at the time of this report)
While the law does not allow state agencies to directly interfere with federal immigration enforcement, it does leave the enforcement of federal immigration law to the federal government in most situations. This makes it much more difficult for the federal government to enforce federal immigration law in Oregon because Congress has refused to budget enough money to pay for the federal agents needed to do so.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal programs because most enforcement actions rely on help, support and leadership from the states.
Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
On immigration, federal resources are even more stretched. As noted in my 2017 column in The Hill:
As the U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) notes on its website, the first and foremost factor impacting its enforcement capability is “the level of cooperation from state and local law enforcement partners.”
With just over 5,700 agents nationwide, ERO reported removal of “240,255 aliens in FY 2016.” In spite of the supposedly high number of sanctuary cities nationwide, this number actually represented an uptick from 2015 due partly to what ERO called “increased state and local cooperation.”
At this rate, removing anywhere close to the at least 11 million unauthorized immigrants in the country right now seems impossible.
Simply put, partnerships don’t work too well when half the team quits. And in this case, when most of the team stops participating.
Provisions withdrawing state and local enforcement of federal law in HB2314 rest on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program.
The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. US (1997) serves as the cornerstone. In it, Justice Scalia wrote for the majority:
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Additionally, in the 1842 Prigg v. Pennsylvania case, the Court held that while the federal Fugitive Slave Act could not be physically impeded by states, they simply weren’t required to help the federal government capture runaway slaves and return them to bondage in the South.
Opponents of the law have vowed to continue their effort to repeal it in the future.
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