Monday, December 11, 2017

The Philosophy Behind Sanctuary Jurisdictions

by Serena Parekh, guest contributor, Assoc. Professor of Philosophy, Northeastern University 

On November 21, a federal judge permanently blocked one of President Trump’s most controversial executive orders: cutting federal funding to the scores of sanctuary localities across the country that have refused to assist the federal government in deporting local residents.  As the battle now moves to the appeals court, legal issues will continue to make the news.  Less flashy perhaps, but critical to our democracy, are the philosophical issues raised by sanctuary cities. 

The idea that cities have a special role to play in protecting all local residents, and that the federal government overreaches when it interferes with those obligations, is fundamental to the philosophical thought that undergirds our democracy.

That is not to say that the philosophical issues raised by sanctuary policies are easy.  In fact, they reveal a genuine tension at the heart of the system of nation states. On the one hand, democratic nations have a right to control immigration, including deporting people who are in the country without authorization.  On the other hand, nations have a moral obligation to respect, protect and fulfill the basic human rights of all people on their territory, regardless of their legal status.  In order to fulfill this latter group of rights, states have to create conditions that allow everyone in the country to, for example, trust the police, feel confident in the judiciary, and feel safe reporting crimes. By building a firewall between local police and federal immigration enforcement, sanctuary policies create the conditions that are necessary for upholding basic human rights without compromising the nation’s right to control immigration. 

Why are human rights so important? These are the rights that are necessary for all human beings to lead a minimally decent life (freedom from torture, security, basic education). There is wide-spread agreement among philosophers and others that no state can fail to uphold this set of rights for all residents on its territory and still consider itself legitimate.

In practice, this require some form of sanctuary policies. Residents cannot exercise their basic human rights if they are worried about deportation for them or their families.  The human right to security especially seem to require that residents are confident reporting crimes to the police and believe that police will treat them with respect.

For philosopher Joseph Carens, an expert in contemporary political theory who focuses on immigration and political community, balancing these considerations requires the existence of a firewall between police and other agencies responsible for rights protection and immigration. Why? Without this strict division, individuals will be unwilling to assert their rights. Clearly, if you are afraid that you will be arrested and deported, you will be less likely to call the police when you have experienced a crime or fear that you will be a victim of a crime. This has already occurred: there has been a 25% drop in reports of domestic violence within the Latino community this year with fears of an increase deportation.  This is an example of a government’s failure to provide the basic right of security to all its residents.

One might object that the primary obligation of the government is to protect the security of its citizens first and foremost, even if this means infringing on the rights of non-citizen residents. Indeed, our current President is keen to remind us of the crimes committed by undocumented immigrants in our country, although he is incorrect: immigrants, both legal and illegal, commit far less crime than native born citizens.

 But even if the assertion were true, the objection misses an important feature of sanctuary policies. The police can still choose to cooperate with immigration authorities if they deem the immigrant in their custody to be violent or a danger to society. Sanctuary policies in no way compromise the safety of citizens, and in the view of many in the police, strengthen it by helping the police to do their job. It turns out that sanctuary policies may be necessary for the government to protect citizens as well.

Philosophical analysis indicates that local sanctuary polices are not only justified, but are actually necessary to the government’s continued legitimacy and its ability to protect all residents on its territory.  This should not be irrelevant to the Administration or the courts.

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