Rendition Resistance

BY Christopher N. Lasch

With the number of immigrant deportations setting new records, attention has focused largely on states like Arizona and Alabama, which seem to be competing to pass the harshest anti-immigrant state law provisions.  Yet laws like those at issue in Arizona v. United States, seeking to augment or supplement federal immigration enforcement efforts, represent only one side of the state and local response to the issue.  Recent years have also witnessed a spate of jurisdictions opting out of immigration enforcement by passing measures restricting local law enforcement from honoring federal immigration detainers.

This Article assesses this wave of rendition resistance in the context of the history of interstate rendition in the United States of fugitive slaves and “fugitives from justice” (criminal fugitives).  This history is relevant because, like immigration rendition, slave rendition and criminal rendition concern a paradigmatic transaction—the claim, by a person or government, of a right to have a second government deliver up the body of a person into the custody of the claimant.  The history explored here is one of legal mechanisms for delivering bodies back across borders.

Our rendition history reveals a robust tradition of rendition resistance stemming from a concern for civil rights. This history supplies a body of precedent supporting those localities that have chosen to resist immigration detainers.  Across two centuries of our history, it was widely accepted that the federal government could not compel local officials to comply with rendition demands. During this period, a historical practice of state and local authorities resisting demands for rendition in the name of civil rights persisted.  Immigration rendition resistance follows this tradition.

Comparing immigrant rendition to fugitive slave rendition and criminal rendition lays bare the nearly complete absence of procedural protections afforded persons in immigration rendition proceedings. Additionally, appreciating the connections between immigrant rendition and slave and criminal rendition allows us to look beyond legal formalism and perceive the underlying values being served by immigration rendition.  Against this historical context, immigration rendition becomes visible as a legal system akin to slave and criminal rendition, established to counter the free migration of laborers of color by delivering them back across borders. The exercise of local authority against rendition efforts, as it has been used in the slave and criminal contexts, can be seen as an expression of disapproval of those underlying values.

DOWNLOAD PDF | 92 N.C. L. Rev. 149 (2014)