Border Enforcement as State-Created Danger

Abstract

A woman seeks refuge at the U.S. border, but U.S. officials force her to wait for her asylum hearing in Mexico where a police officer later stalks and rapes her. A father and child suffer unbearable trauma after U.S. officials separate them under a policy aimed at deterring migration. A formerly healthy family loses a loved one to the coronavirus while forced to wait at an unsanitary, makeshift tent city in Mexico after fleeing for safety to the United States. For the people impacted by U.S. border policies, the southern border is a dangerous place—it is the site of rampant U.S.-created harm. Typically, legal and policy responses to refugee crises are framed by international and domestic legal obligations to provide safety and protect those fleeing persecution or humanitarian disasters. When states fail to meet migrants’ needs or thwart humanitarian processes, critiques logically focus on the government’s failure to meet its refugee, domestic law, and moral obligations. But this focus, though an essential part of countering the government’s illegal actions, insufficiently addresses the United States’ role in creating and inflicting harm.

Recently, however, in the context of the Trump Administration’s family separation policy, a district court recognized that the state-created danger theory of substantive due process protection may have a role to play in reckoning with the harm inflicted at the border—a development constitutional law scholars described as “groundbreaking.” The recognition of state-created danger theories in the family separation context thus raises the possibility of unlocking substantive due process protection in response to other forms of immigration enforcement that cause grievous and lasting harm.

Still, commentators have long lamented the state-created danger doctrine as narrow and impossible to meet. Nevertheless, over the last several decades, many state and federal courts have affirmed the doctrine, recognizing that the State has a duty not to expose people to conscious-shocking harm, even harm committed by third parties, if it is made possible or likely because of state action. The courts have recognized the theory as a possible constitutional restraint even if they have been reluctant to recognize circumstances qualifying as constitutional violations.

This Article draws upon this strand of substantive constitutional protection to help draw attention to and conceptualize new ways of challenging the United States’ state-created border harm. We argue that this body of law provides a strong theoretical foundation for holding government actors accountable for what one commentator described as a doctrine reserved “for truly egregious” government abuse, fitting match for excessive and punitive immigration enforcement that costs people their lives, safety, health, and security. At the very least, it is a starting place for broader normative conversations about the unlawful harm inflicted by the United States in the name of border control.