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Karla Mari McKanders

Premission Requested:  Karla Mari McKanders, Immigration Enforcement and the Fugitive Slave Acts: Exploring Their Similarities, 61 Catholic University Law Review 921 (Fall, 2012) (280 Footnotes)

      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. For example, the landmark case Prigg v. Pennsylvania held that the federal government could not confer power to the states to implement the 1793 Fugitive Slave Act. Prigg declared that the 1793 Fugitive Slave Act and the Constitution's Fugitive Slave Clause provided the exclusive remedy for the return of runaway slaves. This case provides a normative and prescriptive response to contemporary debates about immigration federalism at a time when state and local governments are enacting their own immigration legislation due to federal inaction.

      This Article uses legal history to understand the enforcement of immigration law and policy. This discussion began with immigration scholar Gerald Neuman's 1993 article, The Lost Century of American Immigration Law, Neuman claimed, “ignoring the early history of immigration regulation impairs constitutional understandings of the scope and character of federal immigration power, and of the way in which this power is distributed between Congress and the Recently, Professor Kerry Abrams argued that the 1875 Page Act was the country's first restrictive federal immigration law. Abrams also reviewed early state restrictions and noted that California “compared the immigration of ‘persons incompetent to become citizens' with immigration of free blacks. If the state police power gave Southern states the authority to restrict the migration of free blacks, the logic went, why could not California restrict the migration of the

      This article furthers the Neuman and Abrams analyses, arguing that we should look back further to the 1850 Fugitive Slave Act to understand how the Act brought about the passing of the Equal Protection Clause and how current immigration enforcement policies can abrogate individual rights. Using these articles as a starting point, this Article explores the similarities between the current immigration enforcement policies and the Fugitive Slave Acts.

      To date, legal scholars have not engaged in this comparison. Legal historians who have examined the Fugitive Slave Acts have done so in the context of their constitutional foundations. These historians, however, have not explored how the enforcement of the Fugitive Slave Acts relates to contemporary federal enforcement of immigration laws, perhaps because, as Professor Daniel Kanstroom wrote, “the repugnant but consistent classification of fugitive slave cases as matters of property renders comparison with the deportation system Outside the field of law, scholar and journalist Robert Lovato has alleged that the Fugitive Slave Acts mirror federal immigration enforcement programs such as Secure Our Communities Programs and Agreements of Cooperation in Communities to Enhance Safety and Security Lovato argues, “[f]ederal laws that allowed local and state authorities to pursue blacks under the Fugitive Slave Act appear to be the model for the Bush Administration's [ACCESS] program, which allows states to deputize law enforcement officials to chase, detain, arrest and jail the

      This Article challenges the notion of the Fugitive Slave Acts' irrelevance 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. This Article also contributes to a growing body of scholarship analyzing the role of African American slavery and pre-1875 immigration history in our conceptualization of the U.S. immigration system. Several scholars have already called for the inclusion of the early forced migration patterns of African Americans as part of our conceptualization of immigration history.

      This examination addresses three main thematic questions: (1) how can social norms embedded in laws create a system that perpetuates tiered personhood?; (2) how has the federal government's action or inaction spurred state and local action that violates individual rights?; and (3) does acceptance of anti-immigrant laws reinforce divisive cultural norms that prevent integration of immigrants of color?

      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.


A. 1789 Fugitive Slave Clause and the 1793 Fugitive Slave Act

      During the Constitution's drafting, the Fugitive Slave Clause was added as a compromise between the northern and southern states. The clause provided:

       No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
      According to Robert J. Kaczorowski, the Clause codified the common law right of reception, which “authorized the owner of chattel, such as livestock [or slaves] ..., that strayed or were taken away, to recover them through self-help, provided it could be done without a breach of the Thus, the Fugitive Slave Clause permitted the federal government to resolve conflicts amongst the states by enforcing the right of slave owners to retrieve their fleeing property. The Supreme Court eventually affirmed this grant of power, noting that “if, indeed, the Constitution guarantees the right ... the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce

      In order to make the Fugitive Slave Clause operational, Congress passed the Fugitive Slave Act in 1793 (1793 The 1793 Act provided a process to return fugitive slaves, as well as penalties for those who obstructed their rendition. Slave owners and their agents had a cause of action to enforce their constitutionally secured right of reception in private lawsuits brought in federal and state courts under the 1793 Act. Their efforts were often successful as “[s]lave-owners and their agents brought many civil suits under the 1793 statute, and they succeeded in recovering the civil fine and tort damages more often than they

      The removal process under the 1793 Act involved several steps: (1) the fugitive slave was seized or arrested; (2) the slave owner took the slave before a judge or magistrate in any state or federal court; (3) upon proof the official issued a certificate authorizing removal of the fugitive slave from the state; and (4) a penally of a fine or jail time was imposed if a person had or attempted to obstruct or hinder rights under the Act. The seized fugitive slave “was not entitled to a trial by jury, was not guaranteed the right to testify, and oral testimony was [only] permitted to prove the claim of There was no statute of limitation on claims under the Fugitive Slave Act, making the fear of recapture indefinite.

      The 1793 Act proved ineffective for three reasons: (1) the reluctance of local officers to enforce the provisions; (2) the underlying moral conflict between the northern and southern states regarding slavery; and (3) the constitutionality of the Act. In addition, “[a]s federal judges were rather scarce at the time, the implementation of this law was often quite inefficient, inconvenient, and dangerous. The law did not authorize the issuance of warrants, nor did it allow federal marshals to aid in the pursuit and capture of

      Many cases brought under the 1793 Act were actions in tort against persons who harbored or concealed fugitive slaves. Anyone who helped fugitive slaves abscond would be subject to a $500 fine. Despite their personal views to the contrary and the lack of uniformity in state law on the issue, “antebellum state and federal judges felt obligated to enforce the Fugitive Slave Clause and the Fugitive Slave Act of For example, in Jones v. Van Zandt, the plaintiff, a citizen from Kentucky, brought an action against the defendant, a citizen from Ohio, for harboring and concealing fugitive slaves. Jones alleged that Van Zandt knew the persons were fugitive slaves yet concealed them. Van Zandt claimed that he lacked notice that the persons he helped were fugitive slaves and argued that, in order to be fined, proper notice was required. The Supreme Court found that verbal notice or acts evidencing knowledge of the fugitive slave's status was enough to establish requisite notice. Further, the Court found that an overt act intended to “elude the vigilance of the master or his agent, and which is calculated to attain such an object is a

B. State Personal Liberty Laws

      Between 1780 and 1861, northern states passed personal liberty laws, some in response to the 1793 Act. Personal liberty laws were intended to interfere with slave owners' efforts to recapture slaves as well as protect free blacks and fugitive slaves from fugitive slave laws. The northern states wanted alleged fugitive slaves to have due process rights and a presumption of freedom.

      Pennsylvania was at the forefront of enacting state laws to prevent the enforcement of the Fugitive Slave Act. The Pennsylvania law stated that if any person attempted to remove a “negro or mulatto” from the state with the intention of enslaving him or her, that person would be guilty of a felony, fined up to $3,000, and sentenced to hard labor. Moreover, Pennsylvania considered children born to fugitive slaves while in the state to be free.

      Vermont and New York passed personal liberty laws during the 1840s. These laws gave those accused as fugitive slaves the right to trial by jury and the right to an attorney. Connecticut and Indiana also provided trial by jury on appeal. Connecticut's early protective statutes, although employing language in the preamble favoring the return of fugitive slaves, fined state officials who took part in fugitive slave cases.

      In the South, South Carolina passed its Declaration of the Causes of Secession in 1860. In this declaration, the state noted that “fourteen of the States have deliberately refused for years past to fulfill their constitutional obligations, and we refer to their own statutes for the In response, Senator Benjamin Wade of Ohio posited, “[c]annot a sovereign State of this Union prevent the kidnapping of her free citizens because you have a right to claim a slave fleeing from Previously, the northern states took “positive action to remove the internal legal principles built upon the assumption that a person could be considered a This led to a schism on the Mason/Dixon Line and raised an issue of comity amongst states.

C. Prigg v. Pennsylvaniaand the 1850 Fugitive Slave Act

       Prigg v. Pennsylvania was the main case challenging federal and state action under the 1793 Act. In 1832, Edward Prigg, a professional slave catcher, seized Margaret Morgan, a black woman, whose former owner, John Ashmore, let her live virtually free in Maryland despite never formally emancipating her. Because Morgan's parents were informally emancipated, “Morgan grew up thinking she was free and had always lived as a free woman in Thereafter, she moved to Pennsylvania, married a freeborn black man, and had children. At least one of the children was born in Pennsylvania.

      Ashmore's heirs wanted Morgan returned as a slave and sent Prigg to capture her in Pennsylvania. The state refused to return Morgan because Prigg failed to comply with its personal liberty statute. Prigg applied to a state magistrate for certificates of removal, invoking the federal Fugitive Slave Act of 1793. These certificates would allow Prigg to remove Morgan to Maryland legally. When Prigg could not obtain the certificates, he took Morgan and her children to Maryland in violation of Pennsylvania law. What ensued was a long battle between Pennsylvania's personal liberty laws and the Ashmore heirs' ability to remove Morgan to Maryland as a slave under the 1793 Fugitive Slave Act. Pennsylvania indicted Prigg, who pled not guilty, and the state requested his extradition from Maryland. Upon Prigg's return, he was convicted for violating Pennsylvania's personal liberty law. Following his conviction, he appealed to the U.S. Supreme Court.

      The Court considered two issues in Prigg. First, the Court considered whether the power to legislate under the Fugitive Slave Clause of the Constitution resided with the federal government or the states. Second, the Court considered whether federal law could oblige state officials to execute federal fugitive-slave law. Pennsylvania argued its law was based on the police powers that the Tenth Amendment secured.

      The Court held that the 1793 Act's attempt to confer state magistrates jurisdiction over fugitive slaves was unconstitutional. Specifically, the Supreme Court Justices found that Congress had exclusive jurisdiction over fugitive slaves and that only federal courts could enforce rights under the 1793 Act. Legal scholar Paul Finkelman succinctly described the Court's holding as stating “that while state officials ought to enforce the federal Fugitive Slave Act, Congress could not obligate them to do so because Congress did not pay their

      Justice Story's majority opinion ruled that the constitutional clause prohibited the states from freeing fugitive slaves. The majority found that, because the federal law was based on a specific constitutional provision, national in scope, the federal power over the provision was exclusive. Further, the Court found it inconsistent to state that federal power was exclusive, but then order the states to carry out the federal law. Therefore, the federal government was “bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Although the Court believed that state judges should execute the federal law, it recognized that the federal government had no power to require them to do so. The Court did recognize, however, that, in certain instances, the States could “regulate and remove fugitive slaves from their borders” under the police power.

      The disjointed holdings in Prigg encouraged opposition, which resulted in continuing disparities in the application of the law in different states. For example, northern states continued to pass personal liberty laws in opposition to the Supreme Court's decision. Prohibitive personal liberty laws were passed in Connecticut, Massachusetts, Ohio, Pennsylvania, Rhode Island, and Vermont. After Prigg, “Northern resistance led to Southern demands for a more effective federal Because the Prigg Court held that mandatory state administration of the Fugitive Slave Act was unconstitutional, there were demands for the creation of a federal body to exercise authority over the return of fugitive slaves. Consequently, Congress passed the 1850 Fugitive Slave Act (1850 The 1850 Act provided for the appointment of a federal body to administer the system, a procedure for the deportation of slaves (that included the issuance of search and arrest warrants), the issuance of certificates of removal, the imposition of fines for interference, and the deputization of citizens to help with the administration of the system.

      Under the 1850 Act, Congress authorized federal judges to appoint commissioners with “‘the powers that any justice of the peace or other magistrate of any of the United States' had to arrest, imprison, or bail offenders of any crime against the United Judges appointed commissioners in each federal circuit and granted them “concurrent jurisdiction with district and circuit court judges over fugitive slave With these grants of authority, commissioners could issue certificates of removal to claimants upon satisfactory proof that a person was a fugitive slave. It was believed that the commissioners, unlike state officials, would be unbiased in their application of the Fugitive Slave Acts. Many federal agents enforced the return of fugitive slaves. Slave owners went to the appropriate court in their home state to initiate the removal process. In state court, the slave owner would have to “establish that his slave had escaped and owed the owner service or The slave owner also “had to provide a general description of the During these proceedings,

       [i]f the judge of the local court was satisfied that the first two points were correct, ... an official transcript was given to the claimant. The transcript, when presented to a fugitive slave commissioner ..., was to be received as conclusive evidence that the slave described in the transcript had escaped and owed service or labor to the claimant.

      Fugitive slaves were not entitled to any rights during these proceedings. Frequently, slaves were denied the “right to a jury trial, the right of the accused to testify in his own behalf, and the right to habeas For example, congruent with the 1850 Act, statutes in South Carolina and Georgia provided “that the burden of legal proof was on free blacks to show that they were not Despite their efforts, the free states were unable to provide alleged slaves with any protection because of the free states' non-existent legal rights within the pro-slave states.

      The state or local court provided the transcript to the commissioners within the federal district court and the commissioner would issue a warrant for the fugitive slave's arrest. The 1850 Act “empowered commissioners ..., as well as [federal] courts themselves, to issue certificates” of removal. The commissioners could also appoint persons, such as state officials, to execute warrants for the capture of fugitive slaves.

      Once the warrants were issued for capture,

       [t]he law charged federal marshals and their deputies to execute all warrants for the arrest of alleged fugitives issued by the commissioners and the courts and to be financially accountable should the fugitives escape. In pursuance of their duties, the marshals were authorized to summon and call to their aid the bystanders ... [b]ut, should the claimant so prefer, he might seize a fugitive on his own responsibility without a warrant.

      Following the adoption and enforcement of the 1850 Act, “for the first time, [the U.S. had] a large scale, relatively efficient federal system for the forced removal of people from one place to another on the basis of rather scanty proof, with minimal or no judicial oversight, and with only the most flimsy constitutional The underlying flaw with the 1850 Act was that it created a federal enforcement mechanism that allowed the preferences of slave-holding states to override those of the free states. The delegation itself was not problematic; rather, more troublesome was the federal preference to enforce a system that did not recognize what we now know as equal protection or individual liberty interests of the slaves.

D. The Impact of the Fourteenth Amendment's Reconstruction Clause on the Fugitive Slave Acts and Early Immigration Law

      After passage of the Reconstruction Amendments, the states no longer had supreme authority over the forced migration of African American slaves. Instead, they were required to treat all persons equally under the law. Following the Dred Scott decision and passage of the Fourteenth Amendment, Reconstruction radically changed the federal-state balance.

      At the time that Congress and the States passed the 1850 Act and personal liberty laws, there were numerous questions surrounding the boundaries of state sovereignty in relation to the federal government. States saw it within their authority to invoke their police power to control migration at a state level. For the first one hundred years of the country's existence, states heavily regulated immigration. Many states had their own naturalization and immigration laws and laws were passed to protect states from undesirable classes of immigrants. These laws applied to immigrants as well as to citizens of other states.

      The 1857 Dred Scott decision denied the possibility of citizenship to all slaves, ex-slaves, and descendants of slaves and also prevented Congress from prohibiting slavery in the territories. This case “‘made freedom local’ and ‘it made slavery national, in the sense that slavery would be legal in any part of the United States where a state government had not abolished it.”’ In 1868, Congress passed the Thirteenth and Fourteenth Amendments, which effectively overturned Dred Scott, thus providing citizenship for all African Americans.

      The Reconstruction Amendments made slavery unconstitutional and, in principle, ensured equality under the law. During the Fourteenth Amendment's passage, Republican senators argued that freed slaves should have the full and equal benefits of the law. The fear was that failure to guarantee equal protection could place the “ex-slave ... in a social limbo” and create tiered citizenship.

      The Fourteenth Amendment's Equal Protection Clause, on its face, ensures that all persons are equal under the law. Federal immigration law, however, emerged as an exception to this general rule. Racial discrimination of Chinese immigrants challenged the Amendment's boundaries in California.

      California's legislature, after having numerous taxes targeted at Chinese immigrants struck down as unconstitutional, switched tactics and passed laws in the 1870s under their police power, focusing on character and conduct. In actuality, the laws targeted Chinese women and the alleged goal was to keep lewd women from migrating into the state.

      State regulation of immigration faltered in In re Ah Fong when a California district court found a California statute regulating the immigration of Chinese women unconstitutional. Circuit Justice Field posited that states could not exercise state police powers for “corrupt uses,” such as discrimination against free blacks. Justice Field indicated that previous state police powers were premised upon the institution of slavery and the exclusion of black slaves. In the wake of the Civil War, he stated that “no such power would be asserted, or if asserted, allowed, in any federal With the emancipation of slaves, states shifted their use of police power from a pretext for discriminating against African Americans to a pretext for the discrimination of Chinese immigrants. Under the Fourteenth Amendment, this was as an invalid exercise of a state's police power. Justice Field remarked that if Chinese migration “is to be stopped, recourse must be had to the federal government, where the whole power over this subject

      Rather than striking down state discriminatory laws against immigrants, the federal government passed similar laws. At the time, the equal protection provisions of the Fourteenth Amendment were not applicable to the federal government. The Chinese exclusion laws of the 1880s marked the federal government's entrance into prominent regulation of immigration. These laws were passed in reaction to the economic depression in California and concerns over Chinese laborers taking jobs away from native-born Americans.

      The two main cases challenging the Chinese exclusion laws were Chae Chan Ping v. United and Fong Yue Ting v. United States. In Chae, the Court “held that a returning resident non-citizen could be excluded if Congress determined that his race was undesirable--or for any other Thus, the Court upheld a federal statute that prohibited unskilled migratory workers of Chinese descent from migrating to and remaining in the United States. Although this result is not incongruent with the modern understanding of constitutional equal protection, the Supreme Court found that Congress and the executive branch had plenary powers over immigration and believed that the judiciary should not intervene at the time. Moreover, in Fong, the Court determined

       [d]eportation or exclusion of aliens “may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts.”Imposing the burden of proof on the Chinese person, and providing for testimony of white witnesses only “is within the acknowledged power of every legislature to prescribe the evidence which shall be received, and the effect of that evidence, in the courts of its own
       Chae sustained Congress's plenary power over immigration, whereas Fong affirmed congressional power to pass deportation statutes excluding non-citizens based on race or for any other reason. Both cases affirmed that federal immigration power superseded the equal protection rights of immigrants.

      Here, we see the affirmation of the federal government's exclusive power over immigration, even in upholding racial exclusionary policies. This is evident despite that, under equal protection norms, state discrimination against non-citizens receives greater scrutiny. Once the Court chose to uphold federal immigration laws, equal protection norms were not given much attention.

      States' use of police powers to exclude Chinese immigrants declined as southern states lost the ability to use police powers to control the migration of free African Americans and an increase of federal laws aimed at excluding Chinese immigrants replaced unconstitutional state attempts. If a person was in the country unlawfully, the violation gave the federal government the right to devalue a Chinese immigrant as a person and exploit his or her willingness to work at no cost. Thus, the federal immigration system's early foundation, instead of striking down discriminatory state immigration laws, simply moved discriminatory laws to the federal level where they continued against Chinese immigrants.

      In analyzing federal power over immigration, a commentator noted that

       [i]t was no coincidence that greater legal freedoms for African Americans were tied to Chinese misfortunes. As one historian observed, “[w]ith Negro slavery a dead issue after 1865, greater attention was focused [on immigration from China].” Political forces quickly reacted to fill the racial void in the political arena. In California, partisan political concerns, along with labor unionism, in the post-Civil War period figured prominently in the anti-Chinese movement.

      The Supreme Court explored the relationship between the treatment of African Americans and other racial minorities in Plessy v. Ferguson. Justice Harlan, dissenting from the “separate but equal” holding, made the first declaration that “[o]ur Constitution is color-blind.” He also noted the irony that the “separate but equal” doctrine applied to blacks, who unquestionably were part of the political community, but not Chinese immigrants, “a race so different from our own that we do not permit those belonging to it to become citizens of the United States” and who generally are excluded from entering the country. Justice Harlan, although promoting legal equality for citizens, continued to display a strong racial bias.


A. Parallel Stories of the Failure of Federalism

      The 1850 Fugitive Slave Act is analogous to current immigration enforcement laws and policies in terms of federal supremacy and congressional deference-- both demonstrate the failure of federalism. In the case of fugitive slaves, the states could not agree and the federal government was relatively powerless to enforce the desires of the southern states until 1850. The underlying problem, of course, was a fundamental disagreement about the meaning of personhood and citizenship. The southern states felt quite comfortable abusing African Americans' rights because they strongly believed that slaves were property and they were not intended to become citizens. The fundamental disagreement with the northern states on this issue made political compromise impossible.

      The immigration story is an example of reverse-federalism. States are currently frustrated by the federal government's relative inaction on the immigration front. Accordingly, states like Alabama, Arizona, Utah, and Georgia have begun enacting their own immigration laws. The state immigration laws will have a significant impact on immigrant rights. This section examines the reverse federalism story and the extent to which current federal immigration enforcement policy reinforces state and local actors enacting their own immigration laws against both citizen and noncitizens' rights--especially those who look or sound foreign.

      Similar to the time when the 1850 Fugitive Slave Act was enacted, there is currently a conflict amongst states and localities about how to address immigrants within their communities. Recently, various states and localities have enacted laws targeting immigrants while others have enacted laws that give sanctuary to immigrants within their communities.

      When discussing federal authority over immigration, most dialogues start with the proposition that immigration went largely unregulated until the federal government first exerted authority over immigration in the early twentieth century. Discussions related to federal supremacy in the area of immigration are often based on the plenary powers doctrine to justify federal control over immigration without a detailed examination of the historical underpinnings of the federal immigration system.

      Recently, immigration scholars have focused on the relationship between federal, state, and local governments in regulating immigration. States and localities claim that they should be able to use their Tenth Amendment police powers to regulate immigrants within their borders, while the federal government claims exclusivity in the area of immigration law and policy.

      One striking similarity between the Fugitive Slave Acts and current immigration laws is that the 1850 Act created a unique federal law enforcement institution that removed power from state and local hands. The Thomas Sims case perfectly illustrates the parallel. Thomas Sims, a fugitive slave, escaped to Massachusetts and began working. A few years later, his former owner located him in Massachusetts and sought his return. The former owner went through a commissioner to obtain a certificate of removal and then sought to arrest Sims. Instead of using U.S. Marshals to enforce the certificate of removal, the federal government deputized state and local officials as federal agents to enforce the provisions of the 1850 Act. City policemen were hastily sworn in as deputy federal marshals and effectuated the arrest. They ignored the Massachusetts personal liberty law, which stated that Massachusetts would not comply with the 1850 Act and return fugitive slaves to slave states in the South. Despite the clash between federal and Massachusetts law, Sims was returned to Georgia as a fugitive slave.

B. States and Localities Take Action

      Currently, states and localities argue that the federal government fails to enforce existing federal law governing the removal of immigrants within their borders. For example, the Immigration and Nationality Act (INA) § 287(a) gives U.S. Immigration and Customs Enforcement (ICE) the power to interrogate any person believed to be a noncitizen regarding his or her right to be present in the United States and to arrest noncitizens for violation of immigration laws. Further, INA § 287(g) empowers the federal government to enter into agreements with states and localities to apprehend and deport undocumented immigrants. States and localities believe that the federal government is not effectively implementing these types of federal provisions and, as a result, have begun enacting their own laws that mimic §

1. Arizona: S.B. 1070

      Arizona has perhaps the most controversial law, which overtly permits its state and local law enforcement officials to exercise federal immigration powers. In April 2010, Arizona passed S.B. 1070: The Support Our Law Enforcement and Safe Neighborhoods Act. Its purpose is to use state and local government actors to target undocumented immigrants in order to increase the attrition of undocumented immigrants out of the state.

      Under the law, any person who the police reasonably suspect of being an undocumented immigrant may be subject to detention and questioning regarding their immigration status. Section 2 requires officers to make a reasonable attempt, when practicable, to determine an individual's immigration status during any lawful stop, detention, or arrest already effected. Section 2 also requires that all arrested persons have their immigration status determined prior to release. Further, Section 2 describes who may verify immigration statuses and lists documents that create a presumption of lawful presence. These provisions closely resemble the federal immigration powers of INA §

      Section 3 of S.B. 1070 criminalizes the failure to carry an alien registration document at the state level. Section 3 provides that “a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or § 1306(a), which are analogous federal statutes. A first offense is a class one misdemeanor, punishable by up to twenty days of incarceration and up to a $ 100 fine. The second offense is punishable by up to thirty days of jail time.

      The Arizona law was challenged in United States v. and Friendly House v. Whiting. The Whiting lawsuit alleged that S.B. 1070 interferes with federal immigration law in violation of the Supremacy Clause, causes racial profiling in violation of the Equal Protection Clause, and violates the Free Speech Clause of the First Amendment. One of the plaintiffs, Jim Shee, is an American citizen of Spanish and Chinese descent and is fluent in Spanish. Despite having lived in Arizona his entire life, he alleges that the police have racially profiled him twice in a single month and asked him to produce his citizenship papers. Shee fears that the bill's implementation would increase the incidence of these frustrating situations. Recently, in United States v. Arizona, in June 2012, the Supreme Court struck down the Arizona law as constitutionally preempted with the exception of section 2, which requires the police to check the immigration status of persons whom they detain before releasing them. The Court found that the law's mandate for state and local police offers to make reasonable attempts to determine the immigration status of a detained person does not interfere with federal immigration laws.

2. Alabama: House Bill 56

      More recently, Alabama passed House Bill 56, the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. Opponents of the bill claim that Alabama Governor Robert Bentley “touted HB 56 as ‘the strongest immigration bill in the country’ and a co-sponsor of the bill boasted that it regulates ‘every aspect of a person's life.”’ The ACLU alleges that H.B. 56 is “[a] shocking throwback to the days of de jure segregation, [and] attempts to make a class of individuals non-persons in the eyes of the

      H.B. 56 asserts there is “a compelling public interest to discourage illegal immigration by requiring all agencies within [Alabama] to fully cooperate with federal immigration authorities in the enforcement of federal immigration This law goes even further than Arizona's, authorizing the Alabama Department of Homeland Security to hire and maintain its own immigration enforcement body. Like Arizona's S.B. 1070, H.B. 56 Section 12(a) requires a law enforcement officer to make a reasonable attempt to determine the immigration status of a detained person when reasonable suspicion exists that the person is an unlawful alien. Further, H.B. 56 Section 18 allows police to detain persons found driving without a proper license for up to forty-eight hours to determine their immigration status. The most controversial part of the statute requires an assessment of immigration status for every student in Alabama public schools when the student enrolls.

      On July 8, 2011, the Hispanic Interest Coalition of Alabama filed a lawsuit against the state alleging that federal immigration law preempts H.B. 56. Specifically, the complaint claims that:

       HB 56 will subject Alabamians--including countless U.S. citizens and non-citizens who have permission from the federal government to remain in the United States--to unlawful interrogations, searches, seizures, and arrests, and will result in racial profiling. This is because HB 56 mandates law enforcement officers to investigate the immigration status of any individual they stop, detain, or arrest when they have “reasonable suspicion” that the individual lacks immigration status. Individuals who may be perceived as ““foreign” by state or local law enforcement agents will be in constant jeopardy of harassment and unlawfully prolonged detention and arrest by state law enforcement officers operating under HB 56's new immigration enforcement mandates. And all Alabamians will be required to carry state-approved identity documentation in order to prevent lengthy investigations as to their status.

      Like the Supreme Court in the Arizona case, the district court judge refused to enjoin Section 12 of the Act, which requires state and local law enforcement officials to try to verify a person's immigration status during routine traffic stops or arrests. The court also denied the injunction of Section 10, which criminalized the willful failure of a person in the country illegally to carry federal immigration papers, because the sections were not preempted by federal law. Like the laws that violated the rights of fugitive slaves, Alabama's law is reminiscent of “pervasive and systematic targeting of a class of persons through punitive state laws that seek to render every aspect of daily life more difficult and less

3. Georgia's Illegal Immigration Reform and Enforcement Act

      Another timely example is the Georgia Illegal Immigration Reform and Enforcement Act of 2011. The statute provides criminal sanctions for identity fraud and transporting or harboring an illegal alien. The status also contains provisions similar to the Act of 1850, broadly allowing certain federal documents and oral testimony to summarily establish a person's unlawful status. The law further provides that during an investigation, upon probable cause, state and local police officers may verify such suspect's immigration status when the suspect is unable to provide one of the following: (1) A secure and verifiable document as defined in [the Georgia law]; (2) A valid Georgia driver's license; (3) A valid Georgia identification card issued by the Department of Driver Services; (4) If the entity requires proof of legal presence in the United States before issuance, any valid driver's license from a state or district of the United States or any valid identification document issued by the United States federal government; ... (6) Other information as to the suspect's identity that is sufficient to allow the peace officer to independently identify the suspect.

      Like the 1793 Fugitive Slave Act, this law empowers the state to exercise federal enforcement powers.

      Similar to the Arizona and Alabama laws, the Georgia law was challenged in Georgia Latino Alliance for Human Rights v. Deal. The lawsuit alleged that the Georgia statute violates the Equal Protection and Due Process Clauses by unlawfully discriminating against people based on national origin. The plaintiff, Jaypaul Singh, is a U.S. citizen of South Asian descent, who permanently resides in Washington state. Singh, a law student, spends summers in Atlanta as a law clerk. He has a Washington driver's license, but that state does not determine an applicant's immigration status before issuing a license. Thus, his license is insufficient to verify his immigration status under the new Georgia law. Singh fears that he might be subjected to a long detention while police try to ascertain his immigration status.

4. Utah: H.B. 497

      In Utah, the recently passed H.B. 497 requires state and local law enforcement officers to verify the immigration or citizenship status of individuals they encounter who are unlawfully present in the United States. Plaintiffs in Utah Coalition of LaRaza v. Herbert alleged that the statute violates the Equal Protection Clause because it encourages racial profiling of Latinos and anyone who looks or sounds foreign. Similar to the Arizona and Georgia profiling stories, one plaintiff, Milton Ivan Salazar-Gomez, is a resident of Salt Lake City, Utah, and fears that he will be subject to racial profiling. Although he has lived in the United States for nearly his entire life, he is a Mexican national whose parents brought him to the United States when he was ten months old. Salazar-Gomez was stopped for driving with expired tags and turned over to federal immigration officials. Following two months of detainment, he was released and now fears that he might be stopped and harassed during the pendency of his removal proceedings.

C. State Laws Demonstrate a Failure of Federalism

      The Arizona, Alabama, Georgia, and Utah laws mirror INA § 287(a), which provides federal officers the right to interrogate persons believed to be in the United States without authorization. Reminiscent of personal liberty laws, states claim they are inclined to pass anti-immigrant laws because the federal government is not taking action to remedy unauthorized immigration. Both the Fugitive Slave Acts and current state immigration laws demonstrate the failure of federalism. The underlying problem in both cases is a fundamental disagreement couched in terms of federalism that pits states' powers against citizens' civil rights. The current passage of state immigration laws represents reverse-federalism. States like Alabama, Arizona, Utah, and Georgia are responding to federal inaction and are enacting their own immigration laws, whereas the era of the 1850 Act witnessed the federal government taking supreme authority over the regulation of fugitive slaves.


A. Racial Profiling and the Presumption of Illegality Against Fugitive Slaves and Immigrants

      State enforcement of federal immigration laws often leads to racial profiling. This practice, a presumption of illegality based on racial identity, is inconsistent with the Fourth Amendment's protections against unreasonable searches and seizures. It is also inconsistent with the Fourteenth Amendment's equal protection guarantees. The Department of Justice has stated that racial profiling,

       at its core[,] concerns the invidious use of race or ethnicity as a criterion in conducting stops, searches, and other law enforcement investigative procedures. It is premised on the erroneous assumption that any particular individual or one race or ethnicity is more likely to engage in misconduct than any particular individual of another race or ethnicity.
      When law enforcement engages in profiling, there is “[n]o logical relationship ... between any of these characteristics and the commission of Yet, “[g]overnment agencies employ race-based enforcement tactics without empirical proof of their

      During enforcement of the Fugitive Slave Acts, courts held that

       [i]n the case of a person visibly appearing to be a negro, the presumption is, in this country, that he is a slave, and it is incumbent on him to make out his right to freedom: but in the case of a person visibly appearing to be a white man, or an Indian, the presumption is that he is free, and it is necessary for his adversary to shew [sic] that he is a slave.
      Thus, presumptions in the recovery of fugitive slaves are very similar to current racial profiling. The legislation, which permitted slave owners to capture any African American and impress him into servitude, was as racially focused as today's profiling.

      An example of the use of racial profiling in the enforcement of the 1850 Act is illustrated in the story of Solomon Northrup, a free African American, who was captured by James H. Burch, a slave catcher and dealer. Northrup was racially profiled, abducted, and incarcerated and did not did not know why he was imprisoned, as he was never a slave. Scholar Larry Stokes explains that

       [a] White could fraudulently claim that a Black was a slave, and there was very little that a Free Negro could do about it. There always existed the danger of a free Black being kidnapped, as often happened, and taken into slavery. A large majority of free Blacks lived in daily fear of losing what freedom they had. One slip of ignorance of the law would endanger their slight freedom and place them into slavery.

      Anti-slavery activists pointed out the frequent occurrence of free African American men and women being illegally enslaved.

      In recent state and federal immigration laws, there appears to be a similar presumption of illegality that is applied to Latinos. For example, in United States v. Brignoni-Ponce, the Supreme Court held that immigration officers could use racial identifiers with other factors near the U.S. border. Immigration scholar Kevin Johnson critiqued this decision as authorizing the racial profiling of Latinos. Just as Northrup was racially profiled as a slave because he was African American, Brignoni allows the presumption that a Latino with predominant Mesoamerican features near the border is unauthorized.

       Renteria-Villegas v. Hall is demonstrative of the Latino presumption. The Davidson County Sheriffs Office of Nashville, Tennessee, detained Daniel Renteria-Villegas, a 19-year-old Portland, Oregon-born man, twice within the same month. During the first incident, even though the arrest report and booking documents stated that Renteria-Villegas was born in Portland, Oregon, he was placed on an “ICE hold.” The arresting officer, without asking, recorded Renteria-Villegas's place of birth as Mexico. Renteria-Villegas was not released until his family presented officials with his passport and birth certificate.

      These cases illustrate how racial profiling reinforces the unequal application of the laws against certain populations. Lawful residents fear unlawful detention based on criteria such as their race, ethnicity, or proximity to the border. Racial profiling in enforcement may lead to denied access to counsel, unlawful, prolonged detention without the bringing of charges, and denial of substantive and procedural due process rights.

B. Membership Within a State: Are Fugitive Slaves and Immigrants Chattel or Humans?

      Both the 1850 Fugitive Slave Act and current immigration policies have inspired a debate that requires the American people to decide if human beings who live and work among us are morally and legally equal to us. The purpose of this comparison is to highlight similarities between the enforcement of immigration laws and the Fugitive Slave Acts' regulation of human labor. This comparison demonstrates that immigration policies should be instituted based on norms that recognize the personhood and humanity of the subjects of the law. The key connection between the Fugitive Slave Acts and current migration policies is the ways in which immigration law and policy have facilitated dehumanization and created a quasi-citizen worker.

      The most significant parallel between the Fugitive Slave Acts and the current deportation regime is the unjust treatment of human subjects in the course of using cheap labor to maximize profit. Slaves were treated as chattel property and forced into labor. They were counted as three-fifths of a person for purposes of Congressional representation and received no protections under the law. U.S. immigration policies have sought the benefit of migrant laborers separate from their value as persons. At times, our country's migration policies are executed in a manner in which people are seen as machines that simply move levers. This approach has resulted in laws that infringe on the personal liberties of target classes.

      This personless approach is reinforced when those who do not have citizenship are denied the protection of the law. When a person does not fit within membership in a polity, that person may be outside of state protection of rights and can be subject to subordination and exploitation. In this context, when people are divorced from their humanity, the policies surrounding their migration perpetuate dehumanization. In the area of immigration law, scholars such as Kevin Johnson and Linda Bosniak have critiqued how the immigration system has continually perpetuated the subordination of marginalized groups. Bosniak specifically critiques “progressive” scholarship in that it “tends to normatively embrace the very national boundary which serves to effect, and justify, the immigrants' This context questions the “‘national political imagination,’ one which regards the national community as the predominant community of normative concern and presumes the legitimacy, and perhaps the necessity of maintaining borders around Thus, despite their contributions, immigrants' individual rights are severely restricted. Although there must be some form of immigration laws under these theories, our country must examine and limit these laws to the extent that they violate equal protection norms. One can accept some difference in the law, but one cannot accept laws that blatantly violate equal protection norms.

      There is a striking similarity in the regulation of both slaves and migrant workers to low paying and low status jobs. Slaves performed jobs such as agricultural and household work. Today, both documented and undocumented migratory workers are pigeonholed into low paying agriculture, household, and construction jobs. In both positions, the law facilitates the exploitation of the most vulnerable population.

      The Reconstruction Amendments were intended to “abolish[] all class legislation in the States and [do] away with the injustices of subjecting one caste of persons to a code not applicable to Similarly, when immigration law and policy begin to recognize the humanity of the subjects of the laws, there will be more equitable policies towards immigrants who come to the United States as economic migrants. Most acknowledge that “[s]lavery was a system of racial adjustment and social So, too, is an immigration regime that has the indirect effect of targeting the poorest immigrants of color.


      Scholars caution “against creating simplistic solutions to contemporary problems based on complex legal The similarities between current immigration policies and the Fugitive Slave Acts provide insight into current enforcement policies and how federal policies should not follow the same patterns that earlier failed to provide equal protection under the law. In both instances, state and federal governments can enact oppressive laws that fail to recognize the humanity of the subjects of the laws.

      The Fugitive Slave Acts had no procedural protections for free blacks or fugitive slaves. Further, the plenary powers doctrine was implemented in a manner that, while reinforcing Congress's ability to legislate immigration matters, also supported the violation of Chinese migrant workers' rights. Historically, multiplying forces have widespread implications on immigrants' equal protection rights. This is evident from the allegations in the Arizona, Alabama, Georgia and Utah cases. Inevitably, having numerous states and localities enforce immigration policies will lead to increased racial profiling.

      Under the Fugitive Slave Acts, all basic rights of humanity were denied to African Americans.

       [B]lack slaves enjoyed no social status, no wealth, no political influence in the North. This was as weak and disadvantaged a minority as has ever lived in the nation. Whether free or slave, in the decades preceding the Civil War blacks were a group particularly vulnerable to profile based seizures.

      The unlawful Fugitive Slave Acts reinforced this caste-like system.

      Current anti-immigration laws in several states and municipalities across the country deny undocumented immigrants their humanity based upon their unlawful entry into the United States or permitting their immigration status to expire. Like the Fugitive Slave Acts, some state and local laws, such as those in Alabama, Arizona, Georgia, and Utah, were intended to exclude people, regardless of their immigration status, from formerly homogenous states, cities and towns.


. B.A., Spelman College, J.D., Duke University School of Law.