State Sovereignty

Protesters are causing mayhem, not the ICE Agents that are doing their legal duty to protect the United States against ALL Enemies Foreign and Domestic.

Clearly this is an issue that has concerned many Oregonians, especially when we see what is taking place in Portland and other cities around the country. I have been asked several times, as US Senator representing Oregon, what would I propose to remedy this situation? Therefore, I took a deep dive into the matter. 

My research began by doing an inquiry with two different AI search engines. Chat GPT and Grok. Honestly, I did not like the tone that Chat GPT put out and I found Grok much more conversational and willing to consider some of my questions.

I started with the following questions, “Is Oregon’s Sanctuary Status legal according to the US Constitution?” Does it violate any US Codes (USC)?

To my chagrin, according to the responses from both Chat GPT and Grok, Sanctuary State Status is Constitutionally legal under the U.S. Constitution. "This stems from the anti-commandeering doctrine in cases like Printz v. United States (1997), where the Supreme Court ruled the federal government can't force states or local officials to enforce federal programs. The Supreme Court has never directly ruled that sanctuary policies are unconstitutional. Challenges to such policies, such as attempts to cut federal spending, have generally been unsuccessful, with courts consistently upholding States’ Rights to refuse cooperation in federal immigration enforcement. More on that later. 

But how did it even happen that Oregon became a Sanctuary State? I thought surely, we must have voted on it. The answer is No and Yes. Following is a little history of how Oregon became the FIRST State in the Union to become a Sanctuary State. Then I will explain the Constitutionality of Sanctuary Status and the possible violations of the U.S. Constitution. Please note I am not an attorney nor a legal scholar. I am a Main Street Oregonian running for office and am concerned how Sanctuary Statutes are affecting not only Oregon but other states and cities as well. I will end with a possible bill that could be presented to Congress. This is not a short read and there are several links embedded as the source documentation.

It all began when…

In 1987 the Oregon Legislature voted in favor of Sanctuary State Status. In fact, Oregon was the FIRST State to pass such a law. For history on how this came about see http://www.oneoregon.org/stories/barilla-1987-sanctuary-law-passed-broad-bipartisan-support/. That is an excellent short article explaining what led up to HB 2314. 

The Oregon State Legislature passed House Bill 2314, "An Act Relating to law enforcement." The short title/description used in calendars and summaries, “Prohibits state and local law enforcement agencies from enforcing immigration laws.” It also allowed limited information exchange with federal authorities such as INS to verify status for criminal arrests. HB 2314 passed the House 54-3 on February 20, 1987, and the Senate 29 to 1 on June 9, 1987, and signed into law by Governor Neil Goldschmidt, July 7, 1987. The core law was codified as ORS 181A.820 to 181A.829. In addition, Oregon’s Sanctuary Laws also include ORS 180.805, 180.810, ORS 174.109, ORS 174.116-174.118. For a partial list of public bodies included in these Oregon Statutes, click here.

These laws prohibit state and local law enforcement from using resources to detect or apprehend people solely for federal immigration violations. And specifies which public bodies cannot assist Federal Immigration Authorities. Keep in mind, entering or staying in the United States is a civil violation, not a criminal violation. 

In 2021, Oregon’s Sanctuary laws were strengthened by the 2021 Sanctuary Promise Act – House Bill 3265 ensures public bodies of Oregon law enforcement agencies cannot deny services, benefits and other opportunities due to immigration status or federal immigration action, or inquire about one’s immigration status, unless tied to an ongoing criminal investigation.  In other words, local law enforcement is prohibited from using public resources to assist federal immigration authorities without a judicial warrant. The law also protects individuals from investigation or interrogation solely to determine immigration status. Key additional provisions allow for legal action against public bodies that violate the Act, require reporting of federal immigration requests, and ban private entities from operating immigration detention centers in Oregon.

The vote: June 17, 2021, passed the House 36-21, two excused. June 23, 2021, passed the Senate 16-13, one excused. Signed into law by Governor Kate Brown, July 19, 2021.

Early in 2025, Oregon’s new Attorney General Dan Rayfield Published Oregon’s Sanctuary Laws – General Overview for Law Enforcement. This updated the Sanctuary Promise toolkit and guidance for law enforcement in response to federal changes, specifically due to the ‘Trump-era directives’. It includes a "Law Enforcement Bulletin" reviewing obligations/prohibitions, plus reporting mechanisms. This has been referenced in ongoing disputes with a Marion County lawsuit in 2025, where Rayfield defended the laws as clear and non-conflicting.

But wait, why haven’t Oregonians voted to overturn the State’s Sanctuary status?

In 2018, Oregonians had an opportunity to do so. Three Republican members of the Oregon House of Representatives— Sal Esquivel (R-6), Mike Nearman (R-23), and Greg Barreto (R-58)— filed the proposal with the secretary of state's office on April 25, 2017. Esquivel said, "It's time that Oregon complies with federal law like it should have in the first place. If you want to become an American become an American. If you want to come here for economic advantages and do it illegally then I don't think you should belong here”.

The petition drive gathered over 105,000 signatures with a 95.2% validity rate which was confirmed by the Oregon Secretary of State,  Oregon Ballot Measure 105 – Repeal Sanctuary State Law Initiative  qualified for the 2018 November election.

Measure 105 would have repealed 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.

In addition, it would have allowed any law enforcement agency to use agency funds, equipment, and personnel to detect and apprehend people whose only violation of the law is a violation of federal immigration law. 

A Yes vote repealed law limiting (with exceptions) use of state/local law enforcement resources for detecting/apprehending persons suspected only of violating federal immigration laws.

A No vote retained law limiting (with exceptions) use of state /local law enforcement resources for detecting/apprehending persons suspected only of violating federal immigration laws.

Unfortunately, the ballot measure failed. 36.54% voted yes, 63.46% voted no. The Proponents raised over $477,000, the opponents raised more than $12,000,000!

So, the question remains, is State Sanctuary Status a violation of the U.S. Constitution? Representative Sal Esquival inferred it is. 

The Deep Dive 

As part of my research into this question, I sent to both Chat GPT and Grok: (Paraphrased) the following question, “Are State Sanctuary Laws a violation of the U.S. Constitution?”

The responses were: The U.S. Constitution grants the federal government exclusive authority over immigration policy under Article I, Section 8, which empowers Congress to establish a uniform rule of naturalization. However, the Supremacy Clause (Article VI) ensures federal law preempts conflicting state laws. That said, declaring a state like Oregon a "sanctuary state"—meaning it limits state and local cooperation with federal immigration enforcement—does not inherently violate the Constitution. This is because states are not obligated to enforce federal immigration laws.

I was not satisfied with those claims. So, I dug deeper and asked more and more questions.

Apparently the view cited above is supported by legal experts, including the non-partisan Congressional Research Service (CRS), which in its 2025 report on sanctuary jurisdictions stated that such policies are generally constitutional as long as they do not directly obstruct federal enforcement. 

As a candidate for Congress, I felt that interpretation missed the mark when viewed through the lens of the Framers' original intent, especially amid today's immigration challenges. Certainly, the Framers of the U.S. Constitution could not have foreseen what has been happening with illegal immigration and I believe most certainly would violate their intent for a unified national system. 

Therefore, I wanted to know the following: 

Is Oregon's sanctuary status a state or federal issue? 

Is it legal? 

Does it violate the U.S. Constitution? 

How has the Supreme Court ruled?

Let us break it down:

Is Oregon's sanctuary status a state or federal issue? 

Immigration enforcement is fundamentally a federal issue. The U.S. Constitution gives Congress exclusive power over naturalization and immigration policy (Article I, Section 8, Clause 4: "To establish an uniform Rule of Naturalization"). The federal government controls borders, entry, deportation, and citizenship—states cannot make their own immigration laws or set entry rules.

Oregon’s sanctuary status, however, is a state issue in how it allocates its own police, jails, and resources. Oregon’s laws (ORS 181A.820, HB 3265) don’t regulate immigration—they simply direct local law enforcement not to use state money, personnel, or equipment to help with federal immigration enforcement unless it involves a crime or judicial warrant.

The answer is both, but with a clear line:  

• Immigration policy and enforcement are federal responsibilities.  
• How states choose to spend their own resources and cooperate (or not) is a state decision, protected by the 10th Amendment (reserved powers) and the anti-commandeering principle.

The tension arises when state non-cooperation makes it harder for the federal government to do its job uniformly. That’s where critics (including me) argue sanctuary policies cross into undermining federal authority in practice, even if they don’t legally preempt federal law.

Why Sanctuary Laws Are Considered Constitutional Under Current Legal Interpretations

Most legal experts and courts agree that sanctuary policies like Oregon's do not violate the U.S. Constitution. The key idea is that the federal government cannot force states to enforce its laws—a principle called the "anti-commandeering doctrine." This started as a catchy phrase in Supreme Court opinions from the 1990s (like one on waste regulation) and has evolved into a full-blown doctrine protecting state choices. In simple terms, Oregon's laws (ORS 181A.820, HB 3265) just say local police will not divert their time and money to federal immigration work unless it is tied to a crime or judicial warrant. That is seen as a state's right under the 10th Amendment—powers not given to the feds are reserved to states or the people. Non-partisan reports from the Congressional Research Service (CRS) confirm this: passive non-cooperation is not obstruction, so it does not trigger the Supremacy Clause (Article VI, Clause 2), which only overrides direct conflicts. Federal attempts to punish sanctuaries (like withholding grants) have often been blocked by courts as overreach.

Where the Fallacy May Lie: Original Intent of the Framers

But here is where I see the problem: the anti-commandeering doctrine is not explicitly in the Constitution—it is a modern "catch phrase" that is grown into doctrine, and it feels misleading when applied to illegal immigration. The Framers did not envision states opting out in ways that could endanger citizens or undermine national unity. Looking at their original intent: The Supremacy Clause ends with "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding", a strong override for conflicts. In today’s words it means: “even if a state constitution or state law says something completely different or opposite, it does not matter, federal law still prevails.” 

James Madison, in Federalist No. 44, (January 25, 1788) warned that without this, states could nullify federal authority, just like under the weak Articles of Confederation. Yet nullification of federal authority is exactly what Madison was concerned about. James Madison was defending the Supremacy Clause, (Article VI, Clause 2) against Anti-Federalist critics who feared it would destroy state sovereignty. He argued that without strong federal supremacy, the new Constitution would be "evidently and radically defective"—just like the Articles of Confederation, where states routinely ignored or undermined national decisions (treaties, debts, commerce rules). Madison wrote: "The indiscreet zeal of the adversaries to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor. In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the confederacy, an express saving of the supremacy of the former would in such States have brought into question every power contained in the proposed Constitution." 

In plain terms: Madison was warning that if states could override or ignore federal authority in areas where the Constitution grants power to the national government, the Union would collapse into chaos. He was rejecting the idea of state nullification or resistance in those delegated areas, insisting that federal law must prevail to prevent the kind of state interference that crippled the old system.

Ask yourself, is sanctuary status "exactly" what Madison feared, states nullifying federal authority?

On one side, critics' view, including mine; Yes, it looks a lot like it in practice. Sanctuary policies limit state/local cooperation with federal immigration enforcement (a field tied to the federal power over naturalization and foreign affairs in Article I, Section 8). By not honoring detainers, restricting information sharing, or prohibiting resource use for immigration purposes (without a judicial warrant), states can make it harder for the federal government to enforce uniform immigration rules within their borders. This creates a de facto patchwork where federal law is less effective in some places, frustrating the "uniform" system Madison and the Framers wanted. Modern conservative analyses, for example, from the Heritage Foundation or Tenth Amendment Center discussions, sometimes frame this as a form of selective or “de facto” nullification, especially when it shields individuals from deportation who entered or stayed unlawfully.

On the other side, current prevailing court view; No, it is not the same. Madison was talking about states directly contradicting or overriding valid federal laws (passing conflicting statutes or refusing to honor treaties). Sanctuary policies are passive—they do not enact their own immigration rules, block federal agents, or declare federal law invalid. They just decline to assist, which the Supreme Court has protected under the anti-commandeering principle, theoretically rooted in 10th Amendment state sovereignty. Courts see this as states exercising reserved powers over their own police and resources, not nullifying federal law. No state law says, "federal immigration statutes are void here". Rather, they say "we won't help enforce them with our money and or personnel unless it is criminal, or court ordered." That is a distinction courts have upheld, no preemption unless direct conflict.

I submit to you, what Madison feared, that states could nullify federal authority through resistance or override, for example, sanctuary policies, while not formally declaring federal law void, can have a similar practical effect in immigration, undermining the uniformity and national security the Framers prioritized.

Sanctuary policies, while passive, can effectively nullify uniform immigration enforcement (Article I, Section 8: Congress's power over naturalization). When states limit cooperation, it creates a patchwork that frustrates the national system the Framers wanted. This is especially true with unforeseen modern threats. The Framers could not predict mass illegal immigration leading to safety risks across state lines. 

For example, allowing undocumented individuals access to commercial driver's licenses (CDLs) has led to tragic deaths; drivers who cannot read English road signs causing accidents. This is not just a local issue; it involves interstate commerce (Article I, Section 8, Clause 3), where federal rules should protect citizens traveling between states. Sanctuary protections that shield such individuals from deportation can violate the Constitution's promise of "general Welfare" and "common defense" (Preamble), plus the Guarantee Clause (Article IV, Section 4: protecting states from "Invasion"). If unchecked migration equates to an invasion of crime or hazards, states should not hinder federal fixes. It is their duty to safeguard Americans. In my view, the current doctrine is too narrow; it prioritizes state opt-outs over the Framers' goal of a secure, unified nation. As US Senator representing Oregon, I would push for a reevaluation to prioritize citizen safety.

How Has the Supreme Court Ruled? 

The Supreme Court has not directly ruled on sanctuary policies like Oregon's. No case has specifically declared state non-cooperation with federal immigration enforcement unconstitutional (or constitutional). Instead, SCOTUS has addressed related principles that explain why these policies have held up in court. 

The main takeaway from the Court's decisions is that the federal government cannot force states or local officials to enforce its laws. This "anti-commandeering" idea protects states' ability to decide how to use their own resources, which is why sanctuary laws are generally seen as legal.

• In cases from the 1990s, the Court ruled that Congress cannot "commandeer" states to carry out federal programs. While those cases were not about immigration, lower courts have applied the same logic to sanctuary jurisdictions: states do not have to help with federal immigration work unless they choose to.
• Challenges to sanctuary policies (like attempts to withhold federal funding or force cooperation) have mostly failed in lower courts, and the Supreme Court has not taken up a case to overturn them.
• Overall, no Supreme Court decision has invalidated a sanctuary law or policy outright. The rulings lean toward respecting state choices on local policing and resources, even in areas where federal law is supreme.

That said, this does not fully resolve the concerns we discussed earlier about the Framers' intent for uniform federal authority and protection from external threats. The Court has left room for Congress to clarify or adjust the balance through legislation, without forcing states to act.

Conclusion

Oregon's sanctuary status may be legal under current court readings, but it risks the state resistance the Framers feared—weakening federal authority over immigration, creating enforcement gaps, and endangering citizens through unchecked risks that cross state lines. 

From Madison's warnings in Federalist No. 44 to real-world tragedies—like fatal accidents caused by undocumented CDL holders unable to read English road signs—these policies can undermine the Constitution's promise of "general Welfare," "common defense," and protection from external threats. Immigration violations are currently treated as civil matters (or misdemeanors for first-time unlawful entry), which limits accountability, deportation priorities, and deterrence. That must change. 

The Supremacy Clause was designed to ensure uniform federal law prevails, yet sanctuary policies can have a practical nullifying effect, frustrating enforcement and allowing harms to continue. 

 As your Representative for Oregon in the US Senate, I will fight for reforms that restore constitutional balance, prioritize American safety, and provide fairness for genuine hardship cases—without broad mandates on states. 

Secure Borders and Felony Enforcement Act of 2027 (Proposed)

• Make Violations Felonies:
  Amend the Immigration and Nationality Act (8 U.S.C. § 1325) to classify unlawful entry (crossing without inspection) and visa fraud/misrepresentation as felonies. Upon conviction, the primary penalty shall be immediate deportation (removal from the United States) with permanent bar to reentry (no chance to return). Repeat offenses or aggravating factors (e.g., crimes affecting public safety) shall carry a minimum of 2 years imprisonment followed by immediate deportation and permanent bar. Crimes affecting national security (offenses against the United States as a whole) shall carry enhanced penalties, including longer mandatory imprisonment and permanent exclusion. Lesser crimes (e.g., robbery against one person) receive standard felony treatment with deportation.
• Visa Overstays – Compassionate Exceptions & Waivers

Visa overstays (failing to depart after legal entry) shall not be automatically criminalized as felonies. They remain subject to existing civil removal proceedings, with waiver/mitigation for extenuating circumstances beyond the individual's control—such as government actions in the home country, humanitarian emergencies, family hardships, medical issues, or good-faith efforts to comply. The Secretary of Homeland Security shall have discretion to grant relief from removal in qualifying cases.

• End Sanctuary Status – Preemption & Harboring

Any state or local law, policy, or practice that obstructs, limits, or refuses cooperation with federal enforcement of felony immigration violations (including unlawful entry, visa fraud, or harboring after the Act's effective date) shall be preempted under the Supremacy Clause as conflicting with federal criminal law. State and local officials who knowingly implement or enforce such policies to shield felony violators from identification, detention, or removal shall be subject to prosecution under an expanded 8 U.S.C. § 1324 (harboring) provision, with penalties up to 5 years imprisonment per violation. This ends sanctuary status outright when the felony law takes effect—no exceptions, no funding carve-outs.

• Protect Against Interstate Harms

Preempt state policies that hinder federal action in cases involving interstate threats (e.g., undocumented CDL holders causing fatal accidents across state lines, criminal gangs exploiting sanctuary protections), ensuring federal rules protect commerce and citizen safety under Article I, Section 8.

• Transparency & Oversight                                                                                      Require annual DHS reports on sanctuary impacts on crime, gang activity (e.g., Tren de Aragua in Portland), public safety, and interstate commerce—using existing resources and reporting channels.

That is why, when elected, I will sponsor the Secure Borders and Felony Enforcement Act of 2027. This bill would give federal immigration law real teeth by classifying unlawful entry and visa fraud as felonies with immediate deportation and permanent bar, while providing compassionate waivers for visa overstays in hardship cases. It would end sanctuary status outright: any state or local policy that shields felony immigration violators from federal enforcement would be preempted, and officials who knowingly implement such policies would face federal harboring charges. No exceptions, no funding games—just enforcement of federal law as the Framers intended.

This bill honors the Framers' intent for uniform, effective federal leadership on immigration, puts American citizens first, and balances strong enforcement with humanity. It adds no new spending, respects state sovereignty, and gives federal law the enforcement strength it needs to protect our communities.

Together, we can secure our future. 

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