A Study on Immigrant Activism, Secure Communities, and Rawlsian Civil Disobedience
Marquette Law Review, Vol. 100, No. 2, 2016
Boston Univ. School of Law, Public Law Research Paper No. 19-4 (2019)
62 Pages Posted: 8 Mar 2019
Date Written: December 2016
This Article explores the immigrant acts of protest during the Obama presidency in opposition to the Secure Communities (SCOMM) immigration enforcement program through the lens of philosopher John Rawls’ theory of civil disobedience and posits that this immigrant resistance contributed to that administration’s dismantling the federal program by progressively moving localities, and eventually whole states, to cease cooperation with SCOMM. The controversial SCOMM program is one of the most powerful tools of immigration enforcement in the new millennium because it transforms any contact with state and local law enforcement into a potential immigration investigation. SCOMM has now been revived through executive order by the new Trump administration. Under SCOMM, an arrestee’s identifying information is automatically forwarded to Immigration and Customs Enforcement (ICE), the largest investigative arm of the Department of Homeland Security (DHS). During Obama’s tenure, when ICE chose to pursue an investigation into removability, agents issued an immigration detainer requiring that state/local authorities hold the individual beyond when she would have regularly been released, thereby providing ICE time to take her into custody and proceed with removal proceedings. John Rawls’ theory of justice justifies engagement in civil disobedience by society members, which this Article argues includes immigrants, when basic liberties are at stake and ordinary avenues of political change are unavailable. Reviewing the critiques of SCOMM, including legal challenges to its constitutionality and claims that the program threatened public safety and unfairly criminalized all immigrants, this Article submits that SCOMM represents what Rawls would characterize as a violation of basic liberties. Further, given the stagnation and gridlock that typifies government approaches to immigration reform, regular political avenues to remedy SCOMM have been foreclosed. Using primarily two states as case studies, this Article describes immigrant acts of resistance and civil disobedience and explores how these acts mobilized local and state officials to
cease cooperation with SCOMM and contributed to the Obama administration’s dismantling the program. Immigrant activists and their allies must now integrate these strategies as they confront a heightened struggle.
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