Tuesday, November 6, 2012
Immigration Article of the Day: Immigration Enforcement and the Fugitive Slave Acts: Exploring Their Similarities by Karla Mari McKanders
Abstract: Two seemingly different federal enforcement systems that affect the movement of unskilled workers — the 1793 and 1850 Fugitive Slave Acts and current state immigration enforcement policies — have remarkable similarities. Both systems are political stories that are demonstrative of the failure of federalism. The federal government’s current failure to enforce immigration laws has encouraged state and local governments to pass their own laws. Alabama and Arizona have enacted far-reaching laws, which are similar to the federal Immigration and Nationality Act § 287(g) programs. Both have been challenged on constitutional preemption and equal protection grounds. Recent scholarship has focused mainly on whether the state and local actions are constitutionally preempted. Current scholarship has overlooked ways the federal government has previously utilized state and local entities to enforce federal laws that govern individual rights. To date, legal scholars have not engaged in this comparison. This article challenges the notion of the Fugitive Slave Acts’ irrelevance in this context by examining in detail the similarities of both systems and the results that are produced when the federal government is provided with unfettered discretion to abrogate individual rights. The article proceeds in three parts. Part I provides an overview of the implementation and enforcement of the Constitution’s Fugitive Slave Clause and the 1793 and 1850 Fugitive Slave Acts. This Part also explores the implementation of the Fourteenth Amendment’s Equal Protection Clause and the evisceration of the Fugitive Slave Acts when subsequent immigration laws refused to recognize equal protection rights for immigrants. Part II explores the reverse immigration-federalism story in which states and localities are enacting immigration legislation against the backdrop of federal inaction. Part III explores how both the Fugitive Slave Acts and current immigration enforcement laws create outsiders by failing to protect individual liberty rights. The article concludes with broad doctrinal lessons on immigration federalism and demonstrates how the law and legal actors can perpetuate norms that facilitate the creation of tiered personhood.