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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.