Abstract
More than two hundred cities in the United States have now declared themselves to be sanctuary cities. This declaration involves a commitment to non-compliance with federal law; the sanctuary city will refuse to use its own juridical power – including, more crucially, its own police powers – to assist the federal government in the deportation of undocumented residents. We will argue that the sanctuary city might be morally defensible, even if deportation is not always wrong, and even if the federal government is legally permitted to demand that states participate in the process of deportation. We defend this conclusion with reference to a simple, but powerful, norm of international law: that of non-refoulement. As we will discuss, this norm articulates the idea that no state may rightly use its coercive power to move a person into a position in which their basic rights are at risk. We take this norm as a morally defensible principle, and ask what could follow from its acceptance. We argue that this norm has implications for a variety of actors – especially when we notice that those who are facing unjust risks of death are, in general, entitled to use defensive violence against their aggressors. This simple fact, we argue, can help offer a novel defense of the sanctuary city.
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Notes
The Center for Immigration Studies maintains a list of jurisdictions – including cities, counties, and states – that identify as sanctuary jurisdictions. The list is available at https://cis.org/Map-Sanctuary-Cities-Counties-and-States
We focus on the sanctuary city as a phenomenon which has been deployed primarily in the United States, but do not intend to imply that any of our conclusions depend upon any factors unique to the United States. We would note, further, that the phenomenon has been used in resistance against state-level deportation practices in a variety of contexts – including, most recently, Italy, where mayors of cities such as Palermo have used this concept to explain their refusal to assist the Italian government’s current regime of deportation. See Jason Horowitz, “Italy’s Crackdown on Migrants Meets a Grass-Roots Resistance,” The New York Times, February 1, 2019.
A good summary of the phenomenon can be found in Darla Cameron, “How sanctuary cities work, and how Trump’s executive order might affect them,” Washington Post, January 18, 2017. The Trump administration’s summary of its position is available in a brief issued on March 20, 2018, entitled “Sanctuary Cities Undermine Law Enforcement and Endanger Our Communities,” available at https://www.whitehouse.gov/briefings-statements/sanctuary-cities-undermine-law-enforcement-endanger-communities/
Quoted in Christopher Ingraham, “Trump says sanctuary cities are hotbeds of crime. Data say the opposite.” Washington Post, January 27, 2017. This article discusses the research of Tom K. Wong, who has studied the effects of sanctuary policies on crime. His research has consistently found lower crime rates in sanctuary jurisdictions than in non-sanctuary jurisdictions. See Tom K. Wong, “The Effects of Sanctuary Policies on Crime and the Economy,” American Progress, January 26, 2017.
David Pughes and Art Acevedo, “Texas police chiefs: Do not burden police officers with federal immigration enforcement,” Dallas Morning News, April 28, 2017.
Thus, Jacques Derrida hopes that the sanctuary city as an idea might act as a catalyst for the revision of the Westphalian state system. Although he refers primarily to the European sense of the sanctuary city, his point applies with equal strength to the North American sense. Jacques Derrida, On Cosmopolitanism and Forgiveness (London: Routledge, 2001).
The threat is currently the subject of litigation. For a discussion of the constitutional issues, see Ilya Somin, “Federalism, the Constitution, and sanctuary cities,” Washington Post, November 26, 2016.
8 U.S.C. §1373(a).
Prinz v. United States, 521 U.S. 898 (1997) at 905.
It should be noted that not all of us are actually committed to the truth of these stipulations; we merely ask what would follow from that truth, were it to obtain.
See the Convention Relating to the International Status of Refugees of 1933, which contains an earlier statement of non-refoulement.
The concept of “complementary protection” is often invoked in these discussions; see Jane McAdam and Fiona Chong, Refugees: Why Seeking Asylum is Legal and Australia’s Policies Are Not (Sydney: UNSW Press, 2014) 33.
On the latter, see Sale v. Haitian Centers Council, Inc. 509 U.S. 155 (1993), in which the Supreme Court upheld the practice’s legitimacy, on grounds that have been criticized by international lawyers.
Jean Allais, “The jus cogens nature of non-refoulement,” 13(4) International Journal of Refugee Law (2002).
For this reason, we do not consider moral interpretations of the PNR where refugees flee natural disasters such as earthquakes, droughts, and hurricanes. This is because the PNR supports protection from threats that are made with discriminatory intent, and natural disasters lack the requisite mens rea.
The case is similar to Thomson (1991: 283), Doggett (2011: 220), and McMahan (2005: 390). Frowe (2014: 175) considers a case in which a mafia boss raises funds from fellow mobsters to hire an assassin to impermissibly kill an individual, and defends the suggestion that the mere financiers of the assassination are liable to defensive harm. Frowe’s judgment in this case reflects her strong conviction that the assassin is liable to defensive harm.
We say “more readily attaches” so as to avoid the stronger commitment that avoiding less unjust actions is necessarily permissible. We suspect this is true, but we assume a weaker commitment to avoid unnecessary controversy.
It doesn’t follow from this that the individual responsible for the creation of justified threats should (other things being equal) suffer more of the unjust harm than those with less responsibility.
It might be objected that this defense is problematic because it implicitly assumes that Migrant’s death would be unjust if it were caused by, as it were, a natural event. Plane crashes, like tree falls, are natural events, and the harms one suffers as the result of mere natural events can’t be unjust. This view seems at least implicit in, for example, John Rawls (1971). In response to this objection, it will not do to appeal to Agent’s wrongful action as grounding the possibility of injustice, since we seek to show that Agent’s action is unjust, and thus we can’t assume the action to be unjust without vicious circularity. However, our argument is not that Agent’s action is unjust; it’s that if Agent’s action is unjust, then Migrant is permitted to employ certain defensive measures against Agent. What’s more, since refugees are typically under the threat of harm by other agents, the possibility of injustice is very much a live one.
Statman (2008: 659).
Statman (2008: 664).
Frowe (2014: 111).
This is not to say that releasing any private information would be permissible, however. A kidnapper has no right to keep their location or license plate number private if they are transporting a kidnapped individual in their car (or are reasonably suspected of doing so), but they might maintain a right to privacy regarding, for example, their voting record. If it is permissible to release an individual’s private information, therefore, it will be restricted to information to which that individual has forfeited their right. More specifically, it will be information the release of which is necessary (or reasonably regarded as necessary) to prevent the harm threatened by the kidnapper.
In order to avoid violating an individual’s right to privacy by releasing their private information, it must also be true that the release of that information would be proportionate (in the narrow sense) to the unjust harm they pose. In other words, the harm posed to them via public exposure must be proportionate to the unjust harm they pose.
Frowe (2014: 110). While Frowe’s claim is about proportionality, there is reason to believe she also has liability in mind. Her concern is about whether it is permissible to inflict lesser harms when greater harms would nonetheless be (narrowly) proportionate. Thus, while her language appears restricted to proportionality, it is not. Note that not all theorists accept this implication.
Alex Kotlowitz, “The Limits of Sanctuary Cities,” The New Yorker, November 26, 2016.
On official disobedience, see Arthur Applbaum, Ethics for Adversaries (Cambridge: Harvard University Press).
Martin Luther King, Jr., “Letter from the Birmingham Jail,” available at http://okra.stanford.edu/transcription/document_images/undecided/630416-019.pdf
Kotlowitz.
Recall, here, that Socrates – who famously defended obedience to unjust law in the Crito – refused to obey legal orders to perform unjust acts himself; see Apology 32d.
Jamil Dakwar, “All international laws Trump’s Muslim ban is breaking,” Al Jazeera, 2 February 2017.
See McAdam and Chong
Human Rights Watch, “U. S. Drug Deportations Tearing Families Apart,” 2015. Available at https://www.hrw.org/news/2015/06/16/us-drug-deportations-tearing-families-apart
Christina Littlefield, “Sanctuary cities: how Kathryn Steinle’s death intensified the immigration debate,” Los Angeles Times, July 24, 2015.
Jeff Sessions, remarks on sanctuary jurisdictions, March 27, 2017. Available at https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-sanctuary-jurisdictions
Christopher Ingraham, “Trump says sanctuary cities are hotbeds of crime. Data say the opposite.” Available at https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effects-of-sanctuary-policies-on-crime-and-the-economy/
For a discussion of obedience, see A. John Simmons and Christopher Heath Wellman, Is There an Obligation to Obey the Law? (Oxford: Oxford University Press).
Thus, Rawls argues that we ought to restrict the use of public reason to “matters of basic justice and Constitutional essentials”; for other topics, we are bound to respect the majoritarian procedures that may produce results we dislike. See John Rawls, Political Liberalism (New York: Columbia University Press, 1989).
Paul Butler’s advocacy for jury nullification involves similar ideas.
One reviewer has expressed the worry that the principle we defend here is incompatible with exclusion at the border. If we are told that a risk of wrongful deportation is sufficient to made deportation as a practice impermissible, then why can we not similarly assert that a risk of wrongful exclusion is sufficient to impugn the morality of exclusion? To this, we have two broad replies. The first is that this extension may be a legitimate one; we do not here make that extension, but neither do we wish to provide any argument against it, The second is that our focus in the present paper is on the morality of assisting federal practices of deportation, and emerges from the fact that the sanctuary city is a site of resistance to those practices; no similar mode of local resistance to unjust border exclusion has emerged, to our knowledge, but what we say here would likely defend such resistance were it to develop. (We might, to speculate, imagine modes by which local governments could resist unjust practices and policies at the border.). Our focus on the sanctuary city does not reflect a moral commitment that the sanctuary city is uniquely justified; rather, it reflects the empirical fact that such cities exist, and require moral analysis. We are not thereby committed to the claim that other modes of legitimate resistance might emerge. We are grateful to this reviewer for pressing us to be precise on this point.
We would note, finally, that nothing we say here depends upon the threat to the migrant being man-made in origin. Deportation to a country that is unable to support human life is just as wrongful as deportation to one in which human life is not political respected. We are grateful to an anonymous reviewer for this journal for urging us to be explicit about our answer here.
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Blake, M., Hereth, B. Sanctuary Cities and Non-Refoulement. Ethic Theory Moral Prac 23, 457–474 (2020). https://doi.org/10.1007/s10677-020-10082-3
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DOI: https://doi.org/10.1007/s10677-020-10082-3