Marion County filed a lawsuit this summer asking a federal court to clarify what information it could provide to federal immigration officials. Since then, 20 of Oregon’s 36 counties have voiced their support for the lawsuit, along with nearly all county sheriffs in the state. Attorney General Dan Rayfield has asked the court to dismiss the case, arguing that Oregon’s sanctuary state law clearly prohibits local cooperation in immigration enforcement.
Juliet Stumpf is the Edmund O. Belsheim Professor of Law at Lewis & Clark Law School. She joins us to talk about what the county’s lawsuit could mean for Oregon’s sanctuary state law.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Marion County filed a lawsuit this summer asking a federal judge to clarify what information it can provide to federal immigration officials. Twenty of Oregon’s 36 counties have now voiced their support for this suit, along with nearly all county sheriffs. Meanwhile, Oregon Attorney General Dan Rayfield has asked the court to dismiss the case, arguing that Oregon’s sanctuary state law clearly prohibits local cooperation in immigration enforcement.
Juliet Stumpf joins us to talk about what is at stake in this suit. She is the Edmund O. Belsheim Professor of Law at Lewis & Clark Law School. Juliet Stumpf, welcome back to the show.
Juliet Stumpf: Thanks so much. Great to be here.
Miller: I want to start with some of the facts in this case. What information were federal immigration officers asking from Marion County?
Stumpf: Yeah, that’s a great question actually. The information that ICE was asking for is actually quite broad. It was asking for a lot of information about, for example, the person’s address, their employer, a lot of basic information that’s kind of beyond immigration information in specific. So it does ask for a lot of different categories of information.
Miller: And this is for five people, according to the Marion County lawsuit, four of whom the county was able to identify. And those four, they were all people who had been convicted of various sexual crimes and were at that point on parole, is my understanding.
Stumpf: Yeah, that’s my understanding too.
Miller: The request for this information, for contact information for last known address, for emergency contacts, for employers, that came in the form of five immigration enforcement subpoenas. What is an immigration enforcement subpoena? And how is it different from what many of us might think of, in our non-lawyerly ways, about the way subpoenas normally work?
Stumpf: So ICE is actually an administrative agency. People kind of think about ICE as being like the police, especially because they have that word emblazoned on the back of their uniforms. But it’s actually an administrative agency, kind of like any other administrative agency that you might think of that the federal government runs – the IRS, for example, is an administrative agency. So, when it’s issuing these subpoenas, these subpoenas are administrative subpoenas. They’re very different from, say, some kind of documents that you might find in a criminal case. The subpoena is basically issued by the federal government from this administrative agency, and it asks for this information.
Miller: Why is this distinction important, whether the subpoena is coming from an administrative agency as opposed to a judge? Why is it important in the context of Oregon law?
Stumpf: Because the administrative subpoena is signed by a single federal administrative official, instead of a judge. And one of the reasons that we ask judges to look at these kinds of requests, these documents from governments, is that we want a check on government overreaching. We want to make sure that the demand from the government agency or the individual is legitimate. So if it is, and the judge looks at it and says, “yes, this is good, it’s legal,” green light, right? The judge can issue an order saying provide this information to ICE. But that judge checking to make sure that it’s compliant with law is really important to make sure we don’t have government overreach.
Miller: So if I understand correctly, under Oregon’s sanctuary state law, if a judge signs off on the subpoena saying to, say a county sheriff, “yes, provide this information to federal officials,” then that local official has to do so. But if it’s by an administrative subpoena, then they don’t.
Stumpf: That’s exactly right. And the reason for that is the sanctuary law is trying to make sure that Oregon public resources, the Oregon employees, sheriffs, police, and all other employees of Oregon are doing Oregon jobs, jobs that are related to local matters. And that allows the federal immigration enforcement agents to do their job, and we keep them separate. So if there’s a way in which the federal immigration officials want information from Oregon employees, they just need to go through this process. They just have to go try to get that court order from the judge and then Oregon’s agencies, its sheriffs and police, can comply.
Miller: What exactly is the county asking for?
Stumpf: The county says “clarity” around the law. So it says, “we’re being asked to provide this information and we’re not sure whether it’s lawful for us to withhold this information.” And one of the arguments that the county is making is that the public records laws allow for disclosure of certain information just by asking for it.
But there actually is clarity around that question. The state has basically tried to provide that in its motion to dismiss the suit.
Miller: So let me read one of the, I think, relevant parts that the county brought up in their suit from Oregon’s sanctuary state law. The law, according to the county, reads in part this way: “A law enforcement agency or public body may not provide information about an individual in the custody of the public body or law enforcement agency to a federal immigration authority for the purpose of civil immigration enforcement,” except in a couple of cases, including as they write: “to the extent that the information is available to the general public and under the same terms and conditions as the information is available to the general public.”
And then they went on in surprisingly, almost humorous detail to outline different individuals who could have asked for and gotten this information, they say legally. They say a terrorist could have asked for it and if they weren’t doing this, and even if the terrorists were doing this to enforce immigration laws, the county would have to give this information. Or an ICE agent not doing this on behalf of their work could ask for it, a private individual, an official from another state, they said, could do this even if this were in furtherance of immigration enforcement. They said in all these cases, we would have to provide this information, so it’s absurd for us not to provide it to ICE agents when they ask for it.
What do you think of that argument?
Stumpf: It’s kind of a wonderful way to kind of raise this tension between the two of them. I think one of the things that we have to take into account is that our public records laws actually specifically don’t include government bodies in allowing that kind of information to be provided. The public records laws are basically for Oregonians, individuals, corporations, and actually legislators to get that kind of information.
I think one of the things that we really need to look at is what the purpose of the sanctuary law is. And the idea there has been to make sure, first of all as I said, that local resources are being used for local reasons, state resources are being used for state reasons. But it’s also to strengthen the kind of community trust that immigrants have in Oregon and that we have as a community, and making sure that the sanctuary laws can basically protect everybody. If people start to see that there’s very little difference between state and local actors, state and local officials, and federal immigration officials, there starts to be a lack of trust within the community of police officers and sheriffs, and that sort of thing. That’s why our sanctuary law is one of the strongest in the nation, in order to try to maintain that kind of community.
Miller: At least for this very specific case, for the kind of information that immigration officials asked for here that the county says can be made available to any individual, has the county identified a kind of workaround for federal immigration officials?
Stumpf: In terms of needing to respond to the subpoenas?
Miller: Well, the need to not even worry about this subpoena? Because they literally say if these same immigration officials had asked for this information just as private individuals, not for their job, we would give it to them. I’m wondering if that is true, is that a way for the feds to get any information they want? Just don’t do it on behalf of their federal employer, but just do it as individuals?
Stumpf: That’s an interesting question. So I think we might be really concerned if we allowed for that kind of hole to be driven through our public records laws. Because those public records laws, they’re about government transparency to us as civilians. We want to make sure that our public bodies, our government, is transparent enough, providing to the public information. And the reason for that is that we want to keep the government from excessive intrusion and too much secrecy.
So what that means is that those public records laws are not intended for the federal government or state or local governments to use the records laws to get information about civilians. The purpose is to allow civilians, including the media, to get information. The public records laws say we want to give this information to individuals, private companies and legislators. Those are the three seekers of information that the public records requests are for.
Miller: But how would the county know that? If Jane Schmo asks for this information, is it up to the county to say, “wait a minute Jane, do you work for ICE?” Practically speaking, how would that work?
Stumpf: I think that’s probably true that anyone, any individual, including anyone who’s able to get this information as an individual from the public records request laws, or as a result of them, would be able to do that. But if they’re asking on behalf of ICE or asking on behalf of any Oregon government, they wouldn’t be able to get that information. So in theory, an individual who works for the government could ask for that information. But then they’re gonna have to figure out how to use it in an official way. And I think that may be why ICE hasn’t done it that way.
Miller: Oh, because that’s where it could become more challenging and there could be rules saying, “wait a minute, you can’t just use in an official capacity any information that you got, say, as a private individual.”
Stumpf: It would really depend on how they’re trying to use it. But that may be where that comes into play.
Miller: In the bigger picture, what do you think is at stake in this lawsuit? Because we’ve been going into the weeds, for good reasons, I hope, into the intersection of public records law, immigration enforcement and Oregon sanctuary state law. But in the bigger picture, what stands out to you in this suit?
Stumpf: I think it’s really interesting that Marion County is raising this right now. Because the sanctuary law has actually been in place for decades, since 1987. It’s been amended, there’s more protection that the sanctuary laws have now. But this is a very long-standing law, and we haven’t really seen this sort of statement that there’s a huge conflict between state and federal law here until right now. So it raises the question, why now? Why is it that the county is asking this now when we’ve been operating under this law for decades?
Miller: Before we say goodbye, I just want to ask you about another very high-profile, current case that is at the intersection of immigration enforcement and federal power. The trial in U.S. District Court in Portland over the deployment of federalized National Guard in Portland started today. What are you going to be looking for as this case goes on this week?
Stumpf: Two things. One is how is the judge going to interpret the law providing federalization of National Guard troops? One of the things that the federal government has to show is that there’s some really important reason to do that, like there’s a rebellion. So the judge is going to have to interpret whether what’s going on in Portland, in Oregon, actually complies with that high standard for federalizing National Guard troops.
And the second thing is, as we go further along, what is it that the National Guard is supposed to do? Immigration law is administrative law. What’s the military’s role in enforcing what is basically an administrative scheme?
Miller: Just briefly, when a judge, in this case Karin Immergut, puts out temporary restraining orders, basically saying, “I think that based on everything I’ve read so far, that there’s a good chance that I will find for the state,” how often is it that when there’s an actual trial, that same judge then says, “I’m going to go against my initial thinking that led to the temporary restraining orders?”
Stumpf: Well, I couldn’t give you numbers, Dave. But if you think about it this way, that initial order is often based on as much evidence as the state can gather in that short period of time. They kind of instantly act once that federalization has happened. So now the state has the opportunity to provide more evidence, and so does the federal government. So it’s possible that she would rule the other way. But if the circumstances haven’t changed much, and I don’t think they have, we may see a ruling that’s very consistent with what she did in the first place.
Miller: Juliet, thanks very much.
Stumpf: Thank you, Dave. Great to talk to you.
Miller: Juliet Stumpf is the Edmund O. Belsheim Professor of Law at Lewis & Clark Law School.
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