Noncitizen Harboring and the Freedom of Association

Abstract

The United States has long criminalized assistance to unauthorized migrants. It is a crime to smuggle, transport, harbor, or encourage unauthorized migrants to remain in the country, regardless of the reasons for such aid. In response to recent federal harboring prosecutions of humanitarians assisting migrants at the U.S.- Mexico border, scholars and advocates have shown tremendous interest in a defense to liability under the Religious Freedom Restoration Act and the First Amendment’s Free Speech Clause. But a comparative analysis of harboring law reveals that some foreign jurisdictions conceptualize harboring law and defenses to liability in terms of citizen-migrant associations rather than religious freedom or freedom of speech.

This Article argues that conceptualizing harboring law in the United States in terms of the freedom of association, like these foreign jurisdictions, would pay off in three ways: First, it would improve the descriptive accuracy of the stakes in harboring prosecutions; providing water, food, and shelter to other people amounts to association more clearly than it does an expression of religious belief or a political view. Second, it would provide an opportunity to rework aspects of associational jurisprudence by potentially extending the category of protected “intimate” associations to include activities of care outside of the family. Finally, focusing on association brings the relationships between citizens and migrants to the fore, which in turn stands to improve the visibility and stature of migrants in the law.