The Faculty Lounge: Trump’s Attack on Sanctuary Jurisdictions: Learning from the History of Fugitive Slave Rendition

I would like to thank Al for giving me the opportunity to share some of my recent work, views on current events, and thoughts on teaching. Given recent events, I thought I would start with the Trump Administration’s attack on California’s sanctuary laws. Back in 2013, I wrote a brief essay titled: “Immigration Enforcement Reform: Learning from the History of Fugitive Slave Rendition.” I thought I would take this opportunity to update the piece by applying it to recent developments.

Without getting into the weeds, sanctuary jurisdictions withdraw state or local participation in the process of federal immigration enforcement. The Trump Administration first attacked sanctuary cities by announcing that it withhold certain federal funds from any jurisdiction that failed to participate in federal immigration enforcement. The lower federal courts, however, blocked the administration’s funding policies with nationwide injunctions here, here, and here. Unable to succeed through the spending power, the Justice Department filed a lawsuit on Tuesday asking a federal court to declare that California’s sanctuary laws violate the Supremacy Clause and enjoin their enforcement. The complaint can be found here, and California's legal position justifying the laws when enacted is here.

The Trump Administration is therefore trying to force states and localities to participate in the enforcement of federal policies that the states and localities reject. Yesterday, Sessions said California must fall in line because "There is no nullification; there is no secession. Federal law is the supreme law of the land." Predictably, these actions have triggered a backlash in California and elsewhere. In his own news conference yesterday, Governor Brown called the lawsuit a “political stunt” and called on Sessions to apologize to the people of California.

As I explain below the fold, the parallels between the current controversy and the antebellum fugitive slave controversy are striking. In sum, because federal policy on fugitive slaves cut states out of the policymaking process, it triggered a divisive backlash that proved counterproductive to the rendition process. Rather than repeat this history by forcing the states to comply with unpopular programs run exclusively by ICE, the federal government should learn from this history and give the states a greater voice in policy discussions over immigration enforcement. By failing to do so, the Trump Administration is fueling the very policies of noncooperation that it condemns, just as proslavery federal policy led many northern states to refuse to participate in fugitive slave rendition. Asking the federal courts to resolve the issue, moreover, backfired with fugitive slave rendition and may do the same in immigration.

The Fugitive Slave Clause of the Constitution prohibited northern states from freeing slaves that escaped into their territory. The federal Fugitive Slave act of 1793 provided a process for slave catchers to claim fugitives and bring them before a judge or magistrate. The federal law, however, did nothing to protect against the use of false claims to kidnap free black northerners. Although northern congressmen repeatedly sought anti-kidnapping legislation, southerners rejected such amendments and pushed for stronger federal assistance.

As fellow-blogger Robert Baker has convincingly shown, many northern states passed the type of compromise legislation that Congress had been unable to agree upon. These states provided state procedural protections to people claimed as fugitives to prevent kidnapping before enforcing the federal fugitive act. Under this system of cooperative federalism, the states were able to moderate the enforcement of federal policy and thus make it acceptable to local communities. Northern cooperation in turn appeased most in the South.

In Prigg v. Pennsylvania, however, Justice Story disrupted this system in two ways. First, his opinion essentially held that state laws providing legal protections to those claimed as fugitives were unconstitutional and that fugitive slave rendition was exclusively federal. Second, he used the anticommandeering principle to cast doubt on whether the Fugitive Slave Act of 1793 could force local law enforcement officers to participate in rendition. Unable to extend protections to people claimed as fugitives, a number of northern states passed “Personal Liberty Laws” that were designed to end all state cooperation in fugitive slave rendition. As Christopher Lasch and others have shown, these laws serve as historical precedent for modern sanctuary jurisdictions. The parallels, however, run further.

Just as Attorney General Sessions accused California of “nullification,” southerners argued that the personal liberty laws nullified the Fugitive Slave Clause of the Constitution. Southerners therefore pushed for a new fugitive slave act as part of the Compromise of 1850. Instead of bringing the states back into the policymaking process or attempting to make the process more palatable to the North, the aggressively proslavery Fugitive Slave Act of 1850 empowered the federal government to enforce the law in the face of northern resistance. As R.J.M. Blackett’s excellent new book, The Captive’s Quest for Freedom: Fugitive Slaves, the 1850 Fugitive Slave Law, and the Poltiics of Slavery (Cambridge U. Press, 2018), demonstrates in impressive detail, enforcement of the Act created a powerful antislavery backlash in the North that undermined rendition.

The Trump Administration is repeating this history. Like with fugitive slaves in the early 1800s, Congress is unable to agree on immigration reform due to extreme polarization. In such a situation, the history of fugitive slaves teaches that allowing the states to tailor federal policy to make it acceptable to local communities would make it more efficacious and less divisive. Instead, the Trump Administration has chosen to follow the model of the Fugitive Slave Act of 1850 by aggressively enforcing federal law in the face of local resistance. The result has been and will be the same—local noncooperation at a policy level, grassroots resistance, and social division. But perhaps sowing discord and stirring up the base is part of the Administration’s plan . . .

The Administration’s appeal to the courts could also backfire. As Paul Finkelamn and others have shown, Prigg’s anticommandeering doctrine legitimized northern noncooperation on fugitive slaves. Even an unfavorable ruling could do the same on immigration by similarly providing a blueprint for constitutional state policies.

I can’t help but also mention that the Trump Administration’s rhetoric on this issue is inconsistent with longstanding principles of federalism. Federalism exists so that the states have the independence to make policy decisions that differ from those of the federal government. All of the other benefits of federalism, like local experimentation, can be achieved through decentralization. Although states cannot actively block federal law, they should not be criticized for disagreeing with federal policy and refusing to participate in its enforcement. No matter how the courts rule, when Sessions criticizes California for “blocking” federal immigration law by refusing to participate in its enforcement, he is criticizing the very basis of federalism. Equating noncooperation with “nullification” and secession is a betrayal of federalism.