How Oregon is responding to Trump’s crackdown on immigration

President Donald Trump has wasted no time in enacting his immigration policy. On his first day in office, he issued an executive order that aims to end birthright citizenship, the constitutional provision that automatically grants citizenship to children born in the U.S., regardless of their parent’s status. Attorneys general across the country, including in Oregon, have already sued to block the order. On Wednesday, a federal district court judge in Seattle temporarily blocked the order, calling it “blatantly unconstitutional,” after attorneys general from Oregon, Washington, Illinois and Arizona filed a lawsuit challenging it.

The administration will also allow immigration authorities to make arrests in traditionally safe spaces such as churches and schools. Local and state officials around the country could also be investigated and prosecuted by the Justice Department for refusing to cooperate with immigration enforcement. But Oregon has a longstanding law that specifically prohibits officials from doing just that. Oregon’s new attorney general, Dan Rayfield, joins us to talk about all this and more.

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. President Donald Trump wasted no time in enacting his immigration policy. On his first day in office, he issued an executive order that aims to end birthright citizenship, the constitutional provision that automatically grants citizenship to children born in the U.S., regardless of their parents’ status. Attorneys general across the country, including in Oregon, sued to block the order. It was temporarily paused by a federal judge in Seattle this morning. But other executive orders still stand, at least for now. The administration will allow immigration authorities to make arrests in traditionally safe spaces like churches and schools, and local and state officials around the country could be investigated or prosecuted by the Justice Department for refusing to cooperate on immigration enforcement. That cooperation, though, would go against Oregon’s long-standing sanctuary state law.

Oregon’s new attorney general, Dan Rayfield, joins us to talk about all of this and more. It’s good to have you back on Think Out Loud.

Dan Rayfield: Absolutely, thanks for having us.

Miller: I want to start with today’s news. As I mentioned, you signed on to a recent lawsuit challenging the president’s executive order to end birthright citizenship. And then a few hours ago, a federal judge in Seattle issued a temporary restraining order to block it, calling it blatantly unconstitutional. What’s your response?

Rayfield: Birthright citizenship was something that is incredibly clear in our nation’s constitution. It has 100 years of legal precedence, and you have 100 years of different presidents interpreting it the exact same way. So I can’t say that we are surprised that a federal judge would call this blatantly unconstitutional. I think one of the words he used was “flabbergasted.” And I think when we think about the foundations of democracy, when you have a president, on the first day of his administration, try and rewrite the United States Constitution with the stroke of a pen via an executive order, it’s incredibly important that the judge ruled the way they did … because that’s just the beginning. What’s next? What other constitutional rights do you start moving down towards? This is why we have checks and balances in our democracy. So it was an incredibly important ruling today.

Miller: As I noted though, this is just one executive order among many, just about immigration. There are dozens of others. One of the big focuses of the new administration is a crackdown on so-called sanctuary jurisdictions, including Oregon. And I want to turn there now. Can you just remind us – because this is an important piece of this – what Oregon’s original sanctuary state law says?

Rayfield: I think this is really good context for folks because we don’t think about this in our everyday lives. Oregon’s sanctuary state law is one of the oldest in the country. It has been something that has coexisted between, I think it’s roughly seven presidential administrations. And on its simple face, it basically says that state officials, law enforcement, are not to enforce our federal immigration laws unless – and this is the big “unless” part – there is the appropriate signed judicial order in that space.

This has been something that has been really grounded in Oregon. Just another good reminder for folks, in 2018 on the ballot that year, there had been folks that tried to repeal this law. The repeal effort failed 63% to 36%. So again, a little bit more history in that space, but it’s pretty simple. It says state officials can’t enforce federal immigration law unless you have an order signed from a judge.

Miller: What are the specific forms – as it says on the DOJ’s page in explaining this – that participating directly or indirectly in immigration enforcement might take? Practically speaking, what might Oregon officials, at local levels or at the state level, be asked by federal immigration authorities?

Rayfield: I think those are some interesting questions that are still developing. I think as you begin to take a peek at what the Trump administration is trying to do, there could be information that they’re seeking, for instance, that they could request to the various agencies or departments. That is something that could be very ripe. I think there’s a little bit of uncertainty, and what other types of cooperation or that they’re looking to do.

Again, I think that what we really want to do is … this law, again, has coexisted for a really long time with different administrations. It’s pretty simple. If they want to move in a different direction than our Oregon sanctuary state law, it’s very clear that all they need to do is try and focus on getting a judicial order.

Miller: So then let’s turn to that part. What would federal authorities need to do or to prove to get a judicial warrant?

Rayfield: So those are things that they would need to make a filing within the court, and move within that space. I think that is the question mark. And again, it’s a little bit uncertain right now exactly how the Trump administration is moving. They have set up a lot of executive orders that are foreshadowing directions they may or may not take. As well as, I think it is a little bit indeterminate in terms of some of the other different avenues, where they’re asking agencies to look at things and then report back, so that they can better determine what avenues that they want to move forward with.

Miller: The scenario that I feel like I’ve heard the most, maybe that I’m most familiar with, where the sanctuary law at the state level has really come into conflict with – in this case, the first Trump administration – would be with sheriff’s offices, who had somebody who they pulled in for some issue, and then they were going to let that person go because they didn’t have the authority to hold them for longer. But ICE would say, “Hey, we want you to hold this person for longer. We’ll pick them up in a day, or let us know when the person’s going to be released from county lockup because we’ll be there to swoop in.” Both of those, without a judicial warrant, would go against state law.

I’m curious what other scenarios, say, leaders of other state agencies or people from local jurisdictions … the concerns that they’re bringing to your office over the last week? What are other examples of things where local or state officials are concerned right now?

Rayfield: Again, I think there is the question of information sharing and what people are looking to do. I think it’s pretty apparent by some of the internal memorandum that was sent out yesterday that nationally, our federal agencies are going through and they’re trying to effectuate their role and responsibility in immigration enforcement. And in doing so, they’re going to share information. Then the question becomes if they want to share information or request sharing of information between state agencies. There is, as you’ve identified, where the rub between the state law and what the federal agencies are seeking to accomplish, should that occur.

Miller: Which state agencies have information you think that the feds would be most eager to get access to?

Rayfield: That’s a good question. I don’t know exactly where their focus is going to wind up. But if that was a focus, what I do expect is that they would then try [to] seek and obtain a federal judicial order to then move in that direction.

I think the other thing that is interesting – if you look at the memorandum yesterday that was sent by the Department of Justice, the Deputy Attorney General, federally, in that space, they’re also looking to challenge existing laws that are on the books in individual states. So I think that is something at least they’re telegraphing that they may or may not do.

Again, I think for a lot of folks here in Oregon, our laws have coexisted for a really long period of time. It’s very established. It’s very early; it’s in the first couple of days. But I think they’re foreshadowing some of the directions they’re going to take.

Miller: So the Trump administration, they’re talking about going after local or state officials who don’t cooperate with federal immigration enforcement. Do you see that as a serious threat, or as posturing?

Rayfield: It’s tough to know in any situation. When you read it out loud, there’s a lot of …  Some of the statutes that they quoted, I don’t think would be viable in those scenarios. What I do know is that if there was a lawful judicial order signed, any law enforcement official and folks, we are going to follow the law and move forward in that space.

I think that part of that is probably a little bluster, but it does not change the fact that these are incredibly important issues in communities across Oregon, whether that is within the law enforcement community or whether that is in communities on the ground. In various different cities, people are incredibly unsettled and disturbed by the actions that are coming out of the Trump administration. Any time you have a president who’s willing – as in this birthright citizenship case – to blatantly ignore well-established constitutional principles, and try and modify those just by the stroke of a pen, that should be concerning to people.

I think that that unsettledness and unease is real, but you also have Democratic attorneys general across this nation, where we have been prepared and ready to go. And we knew that this was coming. The day after the president took these actions, we were there to be ready for them. We’ll continue to do that moving forward. We are continuing to be prepared. Any time that the rule of law is being stepped on, we will be there to enforce it.

Miller: What would happen if, say, the feds arrested an employee of a county jail who did not honor a detainer request, a non-judicial warrant. I mean, basically I’m wondering if the state DOJ would defend that person in criminal proceedings?

Rayfield: So typically, the Department of Justice does not have criminal defense lawyers on hand. There are provisions that we do have when an official … Most of the time we think about when a public official or a state official has been charged with something criminal, it’s under a different context. And there are policies in the Department of Administrative Services where things can be referred in that manner, and people will be taken care of under those set of circumstances. I think any time – and this is what is incredibly bothersome – the Department of Justice is being weaponized for political purposes, that really presents us with a new set of unique circumstances that we need to consider all the options available to protect various individuals. So I think, should that come to fruition, that’s a very different set of circumstances.

I think, also, just as we live in a democratic society, it is incredibly disconcerting when the president says that we’re not going to weaponize the Department of Justice. Yet in the very same breath, starts doing things that do in fact weaponize the Department of Justice for political purposes. It gets incredibly concerning. And I think that’s, again, where we need to reevaluate our circumstances, because it’s a new norm.

Miller: Oregon officials at state or local levels, they’re supposed to report to your agency if they get requests to cooperate with federal immigration enforcement. That’s part of the latest version of the sanctuary law. Have those requests increased in the last couple of days? I mean, I don’t know how quickly the data comes in. But I’m wondering what’s happening right now, as opposed to thinking about what might happen in the future?

Rayfield: Right now, again, it’s incredibly early as we begin to move. I think we’re just at the very early stages of this. Again, as what I would kind of put to a lot of folks, there were worries that you think about – the Aliens Enemies Act, the Insurrection Act. How might the president utilize some of those things? And if you look at those executive orders, they’re laying the groundwork to consider and present options, but they have not invoked those types of things yet. And I just use that as an example of how early things are in this process.

So it’s a little bit premature for us on our end to start really looking in that space. We’re keeping an eye on all the different ways that the federal government is interacting with the state and with our Department of Justice, and again, trying to be mindful and ensuring that they are following the rule of law in our state.

Miller: In an interview yesterday with Sean Hannity – Trump’s first interview since being inaugurated as president the second time – he said he would consider withholding federal money from sanctuary jurisdictions. This is something that he tried to do at the beginning of his first term as well. What might that look like in Oregon?

Rayfield: A real good example – and this actually did happen during the first four years of the Trump presidency – they had tried to withhold some grant money. The state of Oregon, the prior attorney general, filed a lawsuit. And again, we were successful, just like we were today, in that lawsuit. I think the one thing for folks to remember, just as a context, is that during the first four years of the Trump administration, there were more than 100 lawsuits that Democratic attorneys general filed. They were successful more than 80% of the time in those lawsuits.

In the first four years, I don’t think anybody could have guessed how active, in terms of violating the rule of law, that [the] Trump administration would have been. This time we were ready. We have been preparing this entire summer to be ready in the event this occurs. That’s why, again, the response was so quick when birthright citizenship was signed as an executive order. And that’s the way we’ll continue to act moving forward, in this kind of collective-like nationwide collaboration.

Miller: Last month, you introduced what you call the Federal Oversight and Accountability Cabinet. The membership reads sort of like a who’s who of Democratic leaning groups or funders: public sector labor unions, the ACLU of Oregon, Basic Rights Oregon – the state’s largest Planned Parenthood affiliate – Oregon League of Conservation Voters. That led House Minority Leader Christine Drazan to say this: “I am both surprised and disappointed to see former Speaker Rayfield abandon his spirit of bipartisanship so quickly, in favor of a hyperpartisan and national agenda. The creation of a hostile partisan cabinet is preemptively adversarial towards the incoming president and jeopardizes opportunities to collaborate with this new administration, seek federal dollars and resources, and achieve real progress for Oregonians.”

I’d love to get your response.

Rayfield: First off, what I absolutely know – and I respect Leader Drazan immensely – is that Leader Drazan and I agree on one thing, that we have a constitution. The Constitution must be followed, and it doesn’t matter if it’s a Democratic or a Republican president. When you violate the Constitution or when you try and change the Constitution with the stroke of a pen, that is unacceptable to our democratic principles. And I know we agree on that. This group is set up to make sure that we are protecting the rule of law. And Dave, what I would say is a little bit of your reporting is inaccurate on who’s actually a part of that and the messaging that you put behind that is inaccurate. I think Drazan’s assumptions are inaccurate.

You’re gonna remember that we also have coordinated care organizations, because healthcare is incredibly important. We have OHSU that sits on this. We have legal scholars, constitutional administrative law scholars that are sitting on this. So the description of the entire makeup of this board was not accurate, in the way that it was initially reported. And primarily, the groups that are on there, and they’re incredibly important to be on there, is because those are the areas where Oregon has stuck its neck out with respect to its values.

When it comes to reproductive health care, we are one of the most proactive states in ensuring the right to choose. When it comes to healthcare, we are out there because we believe every Oregonian should have access to healthcare. That’s exactly why you have a Medicaid provider there. That’s why you have Oregon Health Sciences University there, on that board. When it comes to our environment, you name it … these are the things that we believe in as Oregonians.

It’s important to have these organizations there, because they are connected to different hubs and we want to be responsive. When things happen in the community, where those communities don’t necessarily have a direct nexus to government, then we need to know what is going on, not just from a state level but also in the community. And then be able to communicate directly to people. Because sometimes what happens … and we know this with President Trump. He says things that are misinformation. We need to dispel that and the fear that is in the community. There’s no better way to do that than have a group of folks in this space.

Now, there’s also other folks that we’re communicating with and engaging as well because, as you can imagine, there’s law enforcement, you have your DAs, and other folks as well. So there are different pockets of folks that are all kind of considered under these circumstances.

Miller: I think you said 100 lawsuits filed against President Trump in his first term by your predecessor. It just makes me wonder, broadly, how much of your office’s work you think it’s going to be tied up in countering or responding to the presidential administration, as opposed to furthering your own understanding of Oregon’s best interests as the A.G.?

Rayfield: Yeah, this is a really great question. After my four years, I don’t want to be known as merely someone who fought the Trump administration. That’s an incredibly important responsibility. It’s not even fighting the Trump administration. What you are fighting for is democratic principles of our society, and those are principles that will go on to last more than 100 years. If you allow a president to overturn the Constitution unilaterally, not abiding by the principles of how that should be done, either through Congress or through the states, that has such a broader long-lasting impact. So it is an essential responsibility of our administration to uphold the rule of law.

At the same time, the other way that I want to be known …  And I want our Department of Justice to continue to build on the work that it’s doing to protect seniors, to protect working families, and that isn’t going to be shortsighted in this way. We also have a responsibility to improve safety in our communities, and that is going to continue. As we go through this legislative session, you’re gonna see requests where we’ll have our public safety agenda that’s going to move forward to help so we can reduce the impact of drug cartels, human trafficking and other important elements that we’re seeing in our communities.

At the same time, you’re going to see us move forward with a working families unit to really protect seniors, consumers and working families in their [inaudible]. So we are going to fire on all cylinders. What is helpful in the front for democracy, that is something where every Democratic attorney general in the state is working together and we are sharing resources, to be able to be efficient and make sure that we uphold the rule of law. So I feel very fortunate to have wonderful partners across the nation in this work.

Miller: Dan Rayfield, thanks very much.

Rayfield: Thanks for having us.

Miller: Dan Rayfield is Oregon’s attorney general.

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