About 200 people showed up to protest outside the Immigration and Customs Enforcement building in Portland on Sunday, Sept. 28. (Photo by Alex Baumhardt/Oregon Capital Chronicle)
A powerful Republican lawmaker is proposing legislation that would allow the Trump administration to strip federal funding from states that prosecute federal agents for their conduct during immigration raids. The proposal is drawing a stern rebuke from Oregon leaders as the state’s attorney general weighs whether to bring cases forward.
U.S. Rep. Jodey Arrington, a Texas Republican who chairs the House Budget Committee, introduced the de-funding bill on Dec. 11, in response to what he characterized as “far-left officials targeting immigration enforcement.”
“My Safeguarding Homeland Immigration Enforcement from Local Detention (SHIELD) Act stands up for the rule of law and pushes back on far-left radicals by cutting off every federal dollar to any jurisdiction that obstructs or prosecutes our officers —- even once —- carrying out their critical security responsibilities,” Arrington said in a statement.
Oregon’s Attorney General Dan Rayfield countered that federal agents should not be above the law.
“If a federal agent commits a serious crime in Oregon, our responsibility is to uphold public safety and the rule of law, just as we would in any other case,” Rayfield said in a statement. “Suggesting that states should lose federal funding for enforcing their own criminal laws is not grounded in reality or the Constitution.”
Since October, elected officials in Democrat-led states dealing with an influx in federal immigration officials and actions, such Oregon, Illinois and California, have floated the idea of using local and state law enforcement resources to charge federal agents when they use excessive force during immigration enforcement operations. That also includes prosecuting federal agents for using disproportionate force on bystanders protesting or filming such operations.
And Oregon’s U.S. Sen. Ron Wyden, a Democrat, on Monday co-sponsored a bill that would grant individuals — regardless of their immigration status — the right to sue federal law enforcement officers in civil court.
“I support restoring due process rights by giving people the right to sue law enforcement agencies for carrying out Trump’s authoritarian fever dream,” Wyden said in a statement.
‘Collective punishment’
Arrington’s new bill would allow the U.S. attorney general to consult with the Secretary of Homeland Security to determine whether to entirely withhold or divert federal funding from any state or local government that arrests, detains or prosecutes a federal agent. Funding, including all grants, loans and contracts, could be withheld if it’s determined that jurisdictions have interfered with a federal officer, “in the lawful performance of their duties relating to the enforcement of federal immigration law.”
It remains to be seen whether Arrington will have enough support to get the bill out of the Committee on Oversight and Government Reform and onto the House floor for a vote, or whether it could be pared down to target more specific forms of funding, a more legally-sound approach.
U.S. Rep. Suzanne Bonamici, a Democrat from Portland, said she would oppose Arrington’s bill if it gets to the House floor. An aide told the Capital Chronicle they do not not anticipate it will make it.
“The bill assumes that local jurisdictions are obstructing federal immigration enforcement for political reasons, which is incorrect, and it would impose collective punishment that would harm every resident of a state for actions they did not commit,” Bonamici wrote in a statement. “Finally, this Congress should be addressing the widespread violations of due process and civil rights by ICE rather than giving them cover for their brutal tactics.”
State within its powers
Rayfield says the state is within its powers to bring prosecutions forward if federal agents violate law. He previously told the Capital Chronicle he was evaluating potential cases to refer to local prosecutors.
He and the district attorneys for Multnomah, Washington and Clackamas counties wrote in November to U.S. Attorney General Pam Bondi and Department of Homeland Security Secretary Kristi Noem, explaining that the Oregon Department of Justice would be monitoring federal agents’ conduct for potential prosecution.
The attorneys in their letter said the constitution’s supremacy clause, which allows federal laws to supersede conflict state ones, does not provide blanket authority for federal agents.
“Any such investigations revealing criminal conduct by individual federal officers will be referred to the district attorney to evaluate for prosecution,” the attorneys wrote. “The supremacy clause only affords immunity to federal officers from state criminal prosecution in the reasonable discharge of their duties, and not beyond.”
Legal experts widely agree that states do have some legal authority to bring such cases forward, with the practice stretching back to disputes between states and the federal government during slavery, prohibition and desegregation. Tung Yin, a professor of law at Lewis & Clark Law School, said the new legislation appears to “run afoul” of Supreme Court precedent established in a 1987 case where the federal government attempted to make a percentage of highway funding payments to states contingent on states’ enforcement of a 21-year-old drinking age.
In that case, the federal government targeted a specific percentage of funding and a specific federal funding category. Arrington’s bill lacks that focus, Yin said.
Wyden suggested the bill goes against Republican lawmakers’ traditionally-espoused values regarding “law and order” and limiting federal reach into states’ affairs.
“It’s endlessly fascinating and hypocritical in equal measure that those who profess to favor states’ rights and following the law ignore both when it comes to the states and laws they happen to oppose,” Wyden said in a statement. “This isn’t complicated — federal agents should know laws apply to them if they break those laws in pursuit of Donald Trump’s dictates in Oregon or nationwide.”
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