SALEM, Ore. (July 19, 2021) – Today, the Oregon Gov. Kate Brown signed a bill into law that further limit states cooperation with federal immigration enforcement.
Oregon enacted the very first known immigration “sanctuary state” law in 1987. Current law prohibits state and local law enforcement agents in Oregon from using agency money, 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.
A coalition of Democrats introduced House Bill 3265 (HB3265) earlier this year to strengthen and expand the sanctuary state law with several provisions. Most significantly, it prohibits state and local agencies in Oregon from collecting information about a person’s citizenship status, or using any resources for immigration enforcement.
This provision will basically do an end-run around 8 USC 1373. Under this federal law, states and localities cannot ban information sharing with the feds related to a person’s immigration status. But if state and local law enforcement officers are prohibited from asking about immigration of citizenship status, they can’t violate the federal law in question. They can’t share information and data they don’t have.
Some prominent constitutional scholars, including Ilya Somin, argue that this federal act is also unconstitutional and represents an illegal commandeering of state resources.
HB3265 prohibits state and local agencies from inquiring about individual’s citizenship status without a connection to criminal investigation, or providing information about individual in custody to federal immigration authority. The law also prohibits state and local agencies from denying services to people in the criminal justice system solely based on their immigration status.
The new law also expands on the 1987 measure, and prohibits the use of “public facilities, property, moneys, equipment, technology or personnel may not be used for the purpose of investigating, detecting, apprehending, arresting, detaining or holding individuals for immigration enforcement.”
It also bans agencies from entering into any new agreements with the federal government that authorize “the public body, law enforcement agency or officer to exercise federal immigration enforcement powers.”
While the law will not allow state agencies to directly interfere with federal immigration enforcement, it will leave the ICE to enforce immigration law by itself in many situations. This would likely make it much more difficult for the federal government to enforce federal immigration law in Oregon.
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 gun control measures 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 gun control, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
With immigration, federal resources are even more stretched, as noted in a column published by 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 HB3265 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 four 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.
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