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.
Sacramento State University