Saturday, September 18, 2021

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 Abstract

Excerpted From: Ava Ayers, Missing Immigrants in the Rhetoric of Sanctuary, 2021 Wisconsin Law Review 473 (2021) (Footnotes) (Full Document)

 

AvaAyersWhat does it mean to be a sanctuary? Although the term is commonly used to describe localities and states that resist immigration enforcement, “sanctuary” has no legally recognized definition. This leaves plenty of room for a complex web of meaning and significance to grow in the American moral and cultural imagination. Some of the complexities raised by sanctuary are legal ones. For example, sanctuary policies implicate longstanding uncertainties about the distribution of power between federal and sub-federal actors. But behind these legal questions lie important, understudied moral questions about what values justify (or don't justify) sanctuary policies. This Article looks at the rhetoric with which those moral questions are confronted.

Opponents paint sanctuary jurisdictions as lawless rebels against federal power, and proponents of sanctuary see moral necessity in resistance to unjust immigration laws and practices. The debate is inescapably a moral one. For activists, the moral necessity of sanctuary policies arises from the human needs of undocumented people and a moral vision of inclusive communities. But as local and state governments adopt sanctuary policies, the moral rhetoric used to discuss sanctuary is transformed. Activists and policymakers do not speak the same moral language when they speak about sanctuary. Or so this Article will argue.

 

A. An Interview on Fox News

Shortly after Donald Trump's election, New York City Councilmember Rafael Salamanca Jr. appeared on Fox News to explain why he supported the city's sanctuary policy. He said that he, as a policymaker, had a responsibility for the well-being of the undocumented people in his district: “We want to defend our constituents, whether they're documented or undocumented.” Tucker Carlson, the host, retorted: “I wonder if you have a responsibility to other people in this country, like, say, the middle class in New York .... Where's the concern for them?” Salamanca did not back away from his position that the undocumented people in his community deserved his concern.

Salamanca also connected his stance on sanctuary with his understanding of his community, the South Bronx: “Me being an elected official in the South Bronx, where I have a high population of individuals who are documented or undocumented, it's my responsibility to protect them all.” Claims about the identity of a community are not unusual in the sanctuary context; Chicago Mayor Lori Lightfoot likewise invoked her community when explaining why she would stand by that city's sanctuary policy: “[W]e're gonna stand strong because that's who we are.”

The communities that Salamanca and Lightfoot serve, like all communities, have unique histories, cultures, and identities. Part of their identity is the way their residents relate to immigration-enforcement authorities and the way those residents (both documented and undocumented) relate to each other. Another part of a community's identity is its inclusiveness or the borders of its membership: who counts as a member of the community and who is deemed an outsider.

B. Two Claims

From Salamanca's interview and Lightfoot's comments, we can distill two moral claims: first, the claim that undocumented people are a proper object of policymakers' concern; and second, the claim that the identity of a community can give its policymakers reason to be inclusive and to express that inclusiveness through sanctuary policies by welcoming undocumented people as members of a community. The claim that undocumented people count, and the claim that our communities' identities give us reasons to treat them as members, are closely related, but they are different claims. One might, for example, think that undocumented immigrants are worthy of policymakers' concern while still not thinking they are members of the community or having any particular thought about community identity whatsoever.

The idea that undocumented people count and the idea that our communities' identities give us reasons to care about them are both moral ideas--not ideas that relate to any particular religious or philosophical system, but simply ideas that draw on our beliefs about what is right and wrong or good and bad, and what we owe to each other as human beings. In other words, claims about who counts, and who is included as a member of our community, are moral claims in the sense that they are claims about what matters and who matters.

Another way of describing claims of this kind is to say that they are claims about values. One is a claim about who has value: Salamanca insisted on talking about undocumented people as if their interests, their well-being, is morally relevant. The other is a claim about the values by which a community defines itself and chooses to embrace. Saying “that's who we are” is a way of saying that the identity of our communities has a moral force that justifies, or even requires, treating people in a certain way. Debates about who has value, and how communities define themselves, are central to debates about sanctuary. The rhetoric used by policymakers to justify their support for a sanctuary policy can speak volumes about not only the meaning of sanctuary, but about what those policymakers value, whom they value, and what moral situation they think they see when they look at the world around them.

One might expect sanctuary jurisdictions to speak openly about moral issues like undocumented people's moral standing and community identity. But many sanctuary jurisdictions do not. This Article explores how they shy away from these claims. It examines the moral rhetoric used by sanctuary cities, towns, counties, and states to explain the reasons for adopting their sanctuary policies. It looks at the value claims that are conspicuously absent from the rhetoric; it also looks at the value claims that are present. It seeks to answer, what values do sanctuaries invoke to justify their policies?

C. Whose Well-Being Counts?

Part II explores the question of undocumented people's moral standing by asking who is intended to benefit from sanctuary policies. Sanctuary policymakers often claim that their policies will improve people's well-being in various ways. For example, many sanctuary policymakers point out that sanctuary policies make witnesses feel comfortable cooperating with police and thereby promote public safety. Others observe that sanctuary policies, by making immigrants feel welcome in a community, help increase immigration and therefore the economic prosperity that immigrants bring with them. Each of these claims is a claim based on the moral value of well-being: sanctuary policies will make constituents better off in some way. But who is included among the constituents whose well-being policymakers are promoting? One might expect that sanctuary policies would be designed to benefit undocumented immigrants. Yet many sanctuary policies say no such thing.

As Part II explains, many sanctuary policies announce that they will promote well-being but leave ambiguous whether that includes the well-being of undocumented people. Even some policies that express concern for immigrants do not make clear whether undocumented people are included in those very policies. For example, an executive order in New York State says that “access to State services is critical to the vitality and well-being of immigrant communities and their continued integration into the State's economic, civic, and cultural life.” Does the phrase “immigrant communities” here include undocumented members of those communities? This is a nuanced question, and more than a semantic one. Resolving this textual ambiguity would mean answering whether the undocumented people within those communities have moral standing in the eyes of policymakers.

These ambiguities leave open a harsh possibility: that when sanctuary policies help undocumented people, they do so only because helping undocumented people brings benefits to the rest of “us.” Along these lines, an executive order in Washington State announces the state's commitment to inclusion, but the text of the order mentions undocumented immigrants only in one place: the paragraph that itemizes their contributions to the State's economic prosperity. The failure to mention undocumented immigrants as beneficiaries of the policy, while touting their contributions, suggests a transactional vision in which undocumented people's well-being matters only to the extent it helps promote the interests of others, as Part II argues.

D. Who Is Included in Community Identity?

Part III looks at the ways that community identity and inclusiveness figure in governmental sanctuary discourse. There are necessary differences between activists' ideas about sanctuary and community and governments' ideas on those same subjects. For example, traditional ideas of sacred space as the basis of sanctuary are unavailable to governments in the United States because they cannot declare their territory sacred.

Still, community identity figures importantly in governmental sanctuary rhetoric. Policymakers commonly invoke the identity of their communities as a reason for their sanctuary policies with claims like “this is who we are.” They associate the special identity of their community with ideals of inclusiveness: claiming to be a “welcoming city” or a “global city,” some policymakers cite histories of immigration and diversity as a reason to welcome noncitizens.

But inclusiveness is a matter of degree. Where previous scholarship has often interpreted any assertion of inclusiveness as the equivalent of offering undocumented people social and political membership in a given community, this Article explains that welcoming is not necessarily the equivalent of offering membership. Many sanctuary policies, like those related to Immigrations and Customs Enforcement (ICE) detention, carry no implication of community membership because they are directed at all detainees, regardless of what communities those detainees are members of.

Other policies fail to make clear, at least in the rhetoric offered to justify them, whether the inclusiveness they embrace extends to the undocumented. Some policies conspicuously omit mention of the undocumented. Others mention the undocumented only in the context of acknowledging their economic and social contributions to local communities, which risks an implication that membership is conditional on such contributions.

E. Rhetoric, Meanings, and Values

The focus of this Article is rhetoric, the language that policymakers use to articulate the reasons for their policies in the hopes of persuading others to support them. Rhetoric matters for two reasons. One is that rhetoric has direct consequences: anti-immigrant rhetoric, for example, can inspire discrimination, mistreatment, and even hate crimes. But we can also pay attention to the meaning of the law itself, apart from its consequences. In legal theory, for example, “expressivist” approaches seek to evaluate the way a given law reflects attitudes about the value of human beings, rather than evaluating the consequences the law causes.

Cass Sunstein gives the example of Brown v. Board of Education and debates over the social meaning of segregation; crucially at stake in that case was the fact that segregation laws expressed views about the inferiority of people of color. The Court itself framed this as a question of the impact on schoolchildren: “To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” But the only reason it could have this effect is that segregation meant inferiority. That itself is what scholars study when they study the expressive content of legal rhetoric. As Mary Ann Glendon writes, “law, in addition to all the other things it does, tells stories about the culture that helped to shape it and which it in turn helps to shape: stories about who we are, where we came from, and where we are going.”

As Richard Albert writes, one of the principal things that the law expresses is moral values. Legal documents sometimes make explicit moral claims and sometimes implicitly embrace moral values. As a result, you can learn about a society's values by studying its laws. The expressive content of policymakers' rhetoric and the content of the laws themselves shape the way we view each other and the moral norms by which we govern our communities.

In immigration law, rhetoric shapes norms that determine our society's willingness to welcome noncitizens and decisions about how we treat them. Trevor Gardner offers the example of narratives about immigrants and security, observing that states and localities can provide “alternative security narratives”--stories about the way immigration affects security that substitute a narrative about how sanctuary policies make the public safer for prevailing narratives about immigrants' supposed threat to national security. And Michael Blake observes that, if immigration policies explicitly prefer one racial group to another, “this statement undermines the ability of citizens with the disfavored racial identity to see themselves as full participants in the project of self-rule.” policies directed at Asian people, for example, devalue and insult Asian-American citizens, too. Such policies are morally offensive not only because of their awful consequences but also because of their expressive meaning and the odious moral value system implicit therein.

The goal of this Article is to study the moral rhetoric of sanctuary governments. Rather than seeking to catalog that rhetoric exhaustively, my goal is to convey a sense of some of the major claims most commonly made in sanctuary rhetoric and to then analyze the values underlying those claims.

There are more moral considerations invoked in sanctuary policies than this Article will consider. One very important category of moral ideas that it will not consider is ideas about government and the structure of government. Considerations of local sovereignty, for example, are frequently raised in sanctuary rhetoric. So are ideas about protecting rights, such as Fourth Amendment rights and the rights to equal protection and due process. So, too, with legal concerns about government powers as an influence on sanctuary rhetoric: it is possible, for example, that fear of federal preemption prompts sanctuaries to avoid certain kinds of rhetoric, and that this may be a reason for the rhetorical tendencies I document in this Article. All of these ideas deserve separate consideration. For now, the goal is to ask who is supposed to benefit from sanctuary policies (Part II) and what kind of community identity those policies forge (Part III). But first, some necessary background.

[. . .]

Parts II and III expressed concern about the way undocumented people are sometimes left out of sanctuary rhetoric. As discussed in Part II.3, there are no doubt understandable reasons why policymakers might wish to avoid the kind of bold statement of inclusion and concern for undocumented people's well-being that Councilmember Salamanca expressed in the interview described at the beginning of this Article. But there are also good reasons why policymakers might wish to include undocumented people in their rhetoric.

Here are three.

 

First, candor is a virtue in policymaking, even if it is sometimes punished. For constituents (documented or undocumented) to trust the government that has power over them, they must trust the statements of their policymakers.

Sanctuary policies are motivated by concern for the undocumented and by a desire to include them as members of the communities whose identities are at stake. In the wake of Trump's election, a major wave of localities and states adopted sanctuary policies, and it was not because all of those jurisdictions suddenly realized that protecting undocumented people from immigration authorities would promote public safety or economic prosperity.

After Washington State's executive order, which I criticized above, sanctuary-state legislation was passed, and undocumented people were not mentioned in this legislation or in the committee reports that accompanied it. But Governor Inslee, in a public statement, said, “We will not be complicit in the Trump administration's depraved efforts to break up hard-working immigrant and refugee families.” If this is the belief that motivates sanctuary policies, integrity and public trust counsel in favor of being honest about them.

Second, localities and states cannot be laboratories of democracy if they do not discuss their real concerns. The various theories of the goods that can come from federalism all depend on ideas being allowed to circulate and percolate, and that does not happen unless the ideas emerge into the open.

Third, if the interests of the undocumented cannot be openly acknowledged in sanctuary policies, then it is hard to imagine what policy could ever acknowledge them. Policy rhetoric plays a role in establishing moral norms. One of the major challenges for immigrants' advocates has been to rebut the idea that being undocumented is a morally flawed state that renders one unworthy of concern. One powerful response to this view is simply for policymakers to affirm their own concern. Likewise, referring to undocumented people as members of a community is a powerful counter to the idea that they should be treated as commodities or conditional members.

If sanctuary policies do not say these things out loud, it is hard to imagine any other policy will.


Assistant Professor of Law and Director of the Government Law Center, Albany Law School.

 

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