If President Trump had his way, this coming March 5 would be a day of misery for the country’s 700,000 immigrants shielded by the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program of 2012. March 5 was the date the Trump administration set last September for ending DACA’s “Dreamer” protections.
The Supreme Court has put off a March 5 crisis by declining a White House request that it immediately decide whether the Trump administration can end DACA. The court ruled that the 9th Circuit Court of Appeals in California must be given time to hear the case now before it on the legality of DACA.
The result is that, if Congress does not act, it will likely not be until close to the 2018 midterm elections that the Supreme Court would agree to hear appeals on DACA. The battle over immigration is one the Trump administration seems eager to have, but the current immigration battle, which goes beyond just DACA, is not one the Trump administration is fated to win if history is any guide.
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In the pre-Civil War era, a similar battle took place when many Northern states passed personal-liberty laws designed to prevent the recapture of slaves who had fled the South in search of freedom. These runaway slaves were in danger of being sent back to the South, and like today’s immigrants, the cause they embodied exceeded politics.
Shortly after the Trump administration took office, historian Eric Foner pointed out the parallels between 19th-century personal-liberty laws and current sanctuary laws intended to help immigrants. Today, we need to take that historical comparison a step further and look at the way the shared language of personal-liberty laws and sanctuary laws speaks to the present moment.
Up until the Civil War, the biggest legal problem in the 19th century for those wanting to make the North a refuge for runaway slaves came from the Fugitive Slave Act of 1793 and its much harsher successor, The Fugitive Slave Act of 1850, which passed Congress as part of the Compromise of 1850 and was quickly signed into law by President Millard Fillmore.
The aim of the Fugitive Slave Act of 1850 was to make recovery of runaway slaves easier for the South. The Act increased the number of officials authorized to hear claims against runaway slaves, and it prohibited those charged with being runaway slaves from testifying on their own behalf in court. The legal challenge for those siding with the slaves was figuring out how to reduce the effectiveness of the Fugitive Slave Act while still treating it as the law of the land.
In this complex undertaking many Northern states took two roads. They subjected the South’s slave hunters to strict legal requirements, and they denied them the help of state law officials in carrying out their rendition efforts.
. The classic example was in Massachusetts, where the 1855 personal liberty law was titled, “An Act to Protect the Rights and Liberties of the People of the Commonwealth of Massachusetts.” The law was passed a year after the 1854 seizure of Anthony Burns, a runaway slave, caused such tumult in Boston that Burns was shipped back to Virginia only with the aid of federal troops that were called in to deal with protesting crowds as large as 50,000.
The Massachusetts law declared that in all fugitive slave cases “the burden of proof shall be on the claimant.” It made “any sheriff, deputy sheriff, jailer, constable or other officer” subject to fine and imprisonment for arresting a fugitive slave. As a result, in Massachusetts there was no easy way to get a runaway slave back to the South. A slave owner faced significant legal and financial hurdles. Burns was the last runaway taken from Boston.
Massachusetts was not unique in its personal-liberty law. The elements central to Massachusetts’s law were part of other states’ personal-liberty laws. Connecticut authorized severe penalties for anyone testifying falsely in a slave case and made it impossible for a slave owner to reclaim a slave solely on the basis of his testimony. Maine’s personal-liberty law declared “no sheriff, deputy sheriff, coroner, constable of any other officer of the state in his official capacity” was permitted to arrest or detain any person said to be a fugitive slave.
Today, when we turn to the texts of modern sanctuary laws, which according to the Federation for American Immigration Reform exist in at least 300 jurisdictions, we see the same noncooperation strategy at work. “Immigrants are valuable and essential members of the California community,” the California Values Act states at its outset. The trust between immigrants and state and local agencies is, the act says, threatened when the state becomes “entangled with federal immigration enforcement,” and so the California Values Act forbids state law enforcement agencies from using their money or personnel “to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes.”
New York City’s sanctuary law follows the same logic in forbidding city agencies from partnering with the U. S. Department of Homeland Security to enforce federal immigration law. “No city agency shall subject its officers or employees to the direction and supervision of the secretary of homeland security primarily in furtherance of immigration enforcement,” the New York City sanctuary law states.
In Massachusetts the state’s Supreme Judicial Court in the 2017 case, Lunn v Commonwealth, dealt the Trump administration a significant setback when it declared that, under Massachusetts law, state law enforcement lacked the authority to detain individuals subject to Immigration and Customs Enforcement (ICE) detainers for civil immigration violations.
What remains for the Trump administration, as it did for the administration of Millard Fillmore after he signed the Fugitive Slave Act of 1850, is law that it must increasingly enforce on a vulnerable population without help from state or local authorities. Like Fillmore, the president has ceded the high moral ground, along with the politics of inclusion, to his opponents, and that’s a risky strategy. Eighty-three percent of voters support setting up a system for all undocumented immigrants who are working to become legal residents, and 79 percent favor a pathway to U.S. citizenship for DACA immigrants under the age of 30 provided they pass a background check.
