Sunday, April 8, 2018

Sanctuary States and the Right of Conscientious Objection

In a liberal society, one of our most treasured liberties is the freedom of conscience and the ability to follow our conscience, even if it involves breaking the law. Ronald Dworkin observes that both liberals and conservatives may agree with this, but the conservatives would say that the conscientious objector must bear the legal consequences of his civil disobedience. Either way, some right of conscientious objection seems to be solidly grounded on the freedom of conscience.

The right of conscientious objection has played a large role in the civil rights movement in the 1950s and 1960s, the Vietnam War protests in the 1960s and 1970s, and the pro-immigrant sanctuary movement in the 1980s under the Reagan Administration. But what is unique about the current sanctuary movement is that rather than primarily private individuals and organizations protesting an unjust law, as in these earlier cases, the current movement also notably involves cities and even states.

Conscientious objection by states may raise many concerns (including whether states have such a right in the first place), but assuming they have this right (e.g., on the grounds that a state may assert the rights of its citizens on their behalf), I want to focus on the following questions: (A) should states exercise this right against certain parts of federal immigration law and (B) should they be able exercise the right without federal repercussions.

(A) I would argue that states should be able to exercise a right of civil disobedience if they (or their constituents) have at least one compelling overriding reason to reject the federal law or policy. Let’s assume that federal law or policy requires cooperation by a state and its agents with the federal government’s enforcement of federal immigration law. Let’s further assume that federal immigration law allows the federal government to locate and deport undocumented immigrants consistently with due process.

Let me sketch three possible reasons:

(1) First, the federal law or policy aims to enforce an immoral law (assuming a deontological framework). If a federal law or policy involved the enforcement of segregation laws, there is good reason not to cooperate with the enforcement of such laws. Similarly, if the relevant parts of immigration law (concerning minority groups) are immoral, in that, they were enacted with discriminatory animus or have the effect of discriminating against certain groups on the basis of race, ethnicity, or nationality, there is good reason not to cooperate with their enforcement. The history of immigration law, arguably, and sadly, is a history of discrimination starting with the Chinese Exclusion Act of 1882, the Immigration Act of 1924 that determined quotas and restricted admission by Blacks and Native Americans, the combined effect of the Hart-Cellar Act of 1965 that replaced quotas with numerical limits and the end of the Bracero program, up to the more recent policies limiting refugees from South America in the 1980s and certain Arabs around the world today.

(2) Second, even if the federal law or policy is not itself immoral, it is being enforced in ways that are immoral or highly questionable (again assuming a deontological framework). For example, it would be wrong to enforce federal law against certain individuals, including undocumented children, i.e., persons who should not be made to suffer for something that was beyond their control. It also arguably would be wrong to force migrants to return to conditions that jeopardize their basic rights, see here and here. The use of for-profit detention centers and the new numeric quotas for immigration judges to push through immigration cases furthermore suggests a system that is more suitable for cattle than humans.

(3) Third, even as a matter of law, states have constitutional grounds for not cooperating with the federal government. There are potential conflicts of laws concerning immigration enforcement. The federal government enjoys broad authority over immigration matters and federal enforcement agents may request local cooperation with its efforts to deport persons who are illegally present in the United States. However, the Fourth Amendment of the Constitution protects individuals from unreasonable searches and seizures and requires a warrant supported by probable cause of criminal activity. It is not a crime for a removable alien just to be present in the United States. The Equal Protection Clause of the Fourteenth Amendment also protects individuals from being singled out for unequal treatment. Consistent with these protections, a state may reasonably believe that its officers should not single out a member of a minority group and ask for her documents and should not stop or detain a person any longer than is necessary to investigate criminal activity. When there is a potential infringement upon a constitutional right, a state may choose to follow the Constitution over requests from federal agents.

One reason would suffice, but I think all three provide strong justification to conscientiously object to the enforcement of certain parts of federal immigration law.

(B) There is, however, the further question of should states be able to conscientiously object without federal repercussions (e.g., loss of federal funding). It is important to note that the above reasons should give the federal government cause to reconsider its own laws and enforcement policies. But given the current political climate, the prospects of reconsideration are slim.

Should states object and deal with the consequences? Using Dworkin’s distinction, liberals would say yes, conservatives no. But, if I’m a state, I would disobey and deal with any federal repercussions because, at the very least, legally, there is uncertainty on the resolution of the legal issues mentioned in (3) involving the constitutional rights of individuals and the power of states under the Tenth Amendment. The matter is currently before the courts. Moreover, morally, justice sometimes requires that we do the right thing, even if the right thing happens to be illegal at the time.

Chong Choe-Smith 
Philosophy Department
Sacramento State University


  1. Thanks for posting on such a relevant topic!!

    Having no quarrel with A, I am inclined to queston B. I believe states should be able to conscientiously object the fed, but the "without reprecussions" part is a grey area for me. What is the fine print of the legislation? Are the feds able to penalize? Are they only penalizing as a means of strong arming?
    I am inclined to think that if there are fine print consequences, then yes, the states should be subjected to reprecussions; could also lead to it being ironed out in court and given new precident. However, if the feds are just strong-arming, then hell no! Get off our backs! :)

  2. Kris, thanks for your question.

    Let’s generalize for a moment. If A objects to a law, A can protest by rioting in the streets. A runs the risk of being arrested either because (1) he failed to get permission to protest in a jurisdiction that required a permit, or (2) the riots turn violent and law enforcement’s response includes arresting those involved.

    Martin Luther King, Jr. protested Birmingham’s segregation laws in 1964 (maybe one of the most sympathetic cases). He was arrested and put in jail, where he wrote his Letter from a Birmingham Jail.

    The question in (B) is should a person be able to conscientiously object without legal repercussions (e.g., being arrested). The question is deliberately presented as a normative question, rather than a descriptive one. King was arrested. But should he have been arrested? I think Dworkin’s point (and my point) is that he should not have been arrested if we’re taking rights seriously.

    Here, the federal government is trying to impose sanctions on the state of California for declaring itself a sanctuary state and taking steps consistent with that designation (by the way, Senate Bill 54 was a modest version of the originally proposed legislation—it prohibits state officials from investigating a person’s immigration status and holding them in jail for ICE agents; it does not, for example, prohibit corrections officers from cooperating with ICE agents to deport those charged with serious or violent felonies).

    The federal government's response involves a legal question of whether the federal government is exercising its powers consistently with the Constitution or it is not (as far as I'm aware, Congress's Article 1 powers doesn't include a right to "punish" states). The current Santa Clara litigation challenges whether the federal government is properly exercising its powers. I tend to agree with you; this smells like strong-arming to me (i.e., this is a kind of sanctioning not a proper exercise of “spending” powers; and the federal government is encroaching on the powers of the state to run its own agencies).

    But even if the federal government is exercising its powers consistently with the Constitution, my point is that, if the state is right (for the reasons mentioned in the post), then any federal repercussion is unwarranted. In responding as it has, it is the federal government that deserves moral censure.

    1. Ah yes, normative (I need to get better at framing my thought process still). In that case, I think reprecussions ought to be contingent on the harm produced by the action (violent rioting for instance). If significant harm is caused, it ought to be "corrected" through reprecussions. As far as non-ICE compliance, ﹰI simply don't have enough authority on the issue to make a proper judgement, though I am inclined to believe that considerable harm falls on families and on those getting deported vs harm on the rest of the population when illegal immigrants are allowed to stay.

      (I am not a huge fan of the federal government micromanaging a state's sovereignty in general.)

    2. Question (B) is concerned with whether there should be legal repercussions to an act of conscientious objection. Should there be legal repercussions for a city or state that chooses not to cooperate with ICE agents in certain ways?

      An act of conscientious objection generally may involve some additional harm or wrong against society (seems like you’re not considering law-breaking a harm), such as the destruction of property. If that’s the case, then the legal repercussion is for the further harm and not the act of conscientious objection.

      An act of conscientious objection itself may constitute some harm or wrong against society, such as defacing property with a peace symbol to protest a war. In such case, the legal repercussion may be for the act of conscientious objection (CO). The objector may be charged with vandalism (V). I think, even in these cases, CO can be distinguished from V and the legal response is for V and not CO.

      In the case of sanctuary states, there is no further harm or wrong against society and the act of defiance against the federal government by itself does not harm society (i.e., this alone would not undermine the rule of law, but maybe someone can argue otherwise). The legal repercussions are not for what the act may result in, but for CO itself.

      Kris, the harms and benefits of ICE-compliance is a related, but different conversation. One can certainly apply a consequentialist analysis to defend CO (non-compliance) too. For this post, my focus is on the reasons for CO from a deontological framework based on violations of rights (a Kantian or other rights-based approach). I would be happy to explain or defend any particular reason further (for anyone).

  3. I wish I had room in my schedule to take one of your classes :)

  4. Nice post, Chong. Could you explain why B would be a further question if your answer to A is correct (which it obviously is)? Can you think of any plausible examples where A. ϕing was permissible, but B. you are legitimately punishable for ϕing?

    1. Kyle, thanks for your question.

      Two things come to mind. First, yes, I can think of many examples where my φing is permissible, but also legitimately punished. Let’s say that I’m taking a pregnant woman to the hospital and speeding to get there. If I’m stopped by an officer, the officer may be sympathetic or, at the hearing, a judge may be sympathetic, but most traffic violations are strict liability offenses--if one commits the act, one pays the penalty. There is no exception for emergency, duress, etc. Here’s another example. My religious or cultural beliefs may require that I release a lantern in a river during a certain festival, but the city may have an anti-pollution ordinance against throwing foreign objects into the river. I’m morally justified in following my conscience, but may end up paying a fine. I think these punishments are legitimately imposed.

      Second, some may view the domain of morality separate from the domain of law (a separatist view). Φing may be morally permissible, but legally impermissible and punishable by law. Unless we define legitimacy in terms of justice (as I do, but for the sake of others), we can distinguish between moral legitimacy (e.g., according to justice) and legal legitimacy (e.g., according to law or legal procedures). In the two examples, the acts are morally permissible, but legally impermissible and the punishments are legally legitimate. When the laws are morally good generally, as are traffic safety laws and anti-pollution laws, the punishments also are morally legitimate. What I may be entitled to do morally may be illegal and carry legal consequences. The two examples above are different from the sanctuary state situation because the state is not violating a good law, but protesting a bad law. When the law is good, a person may be morally justified in violating the law because of some special condition, but the condition may have no traction under the law and the person may be subject to the legal consequences. This may be fine morally and legally. When the law is bad, a person is morally justified in violating the law and, if punished, the punishment may be legally legitimate (under current law), but not morally legitimate. The further question may be more of a question for the separatist than the natural lawyer.

    2. Yeah, sorry -- the second thing is more what I had in mind. Better: any examples where A.Φ is an unjust law and B. people are legitimately punished for Φing. I asked because you start B off by saying, "But there is, however, the further question..." which I didn't get and maybe still don't.

      Because when you (or, rather, political philosophers who have the separatist view you describe) say that someone who violates an immoral law can still be permissibly punished because the law is "legally legitimate (under current law)" that just seems a wordier away of offering the descriptive claim you separated out for Kris above. If not that, then it's even worse: the dubious idea that states (normatively) get to exempt themselves from morality. Which of these mistakes do you think they're making?

  5. To Kyle: between the two options (hopefully I'm characterizing them accurately): either states punish wrongly or states believe that they are above morality, I think they punish wrongly. When a critical mass of people (or even local governments) in a democratic society protests a law, the proper response is to engage in democratic deliberation about how to make changes. (What constitutes a critical mass will depend because, when those involved are members of a minority group, a critical mass may be a majority of those members, not a majority of society at large.)

    To anyone: There are different perspectives and moral judgments on the subject of sanctuary cities and states. Others may think that states are entirely within their rights to punish those who claim to be conscientious objectors. They may (quite innocently) believe that there is nothing horribly wrong with immigration law and enforcement. It’s a good law. (Sometimes people say such things as: “Illegals came here illegally,” “they didn’t wait in line,” “they should be deported,” “the country has to protect its borders,” “we have to keep ourselves safe from criminals and terrorists.”) I would agree that states have a right to protect their borders and to determine its rules of membership, but would point out that these rules ought to be fair.

    To those who assume that there’s nothing horribly wrong with immigration law and enforcement, I’ve provided a (partial) list of horrors. Before a person labels someone “illegal” she should examine the history of immigration law and determine whether the structure holding up these categories “illegal” and “legal” are firm or merely a façade, thinly veiled attempts to keep out those deemed undesirable by the dominant group at the time.

    So there’s a third (between bad and even worse) option: either states punish wrongly, states believe that they are above morality, or, under a different perspective, states punish rightly, i.e., states are doing what a majority believes is morally right. I think this third option is uninformed (and morally indefensible, unless maybe from an undemocratic and narrowly focused utilitarian perspective).

    I’m particularly good at being wordy.