Moves by Govs. Ron DeSantis (R-Fla.), Gregg Abbott (R-Texas) and Doug Ducey (R-Ariz.) to transport undocumented migrants to sanctuary cities beyond their states have produced a torrent of denunciation and claims of racism as being (in the words of one writer) the work of “white supremacists, relying on [a] racism-and-spite blueprint.”
Some pundits and Democratic politicians, such as Gov. Gavin Newsom (D-Calif.), have called for criminal investigations by the Justice Department on discrimination, fraud, “kidnapping or potential Racketeer Influenced and Corrupt Organization (RICO) charges.” DeSantis’ Democratic challenger in November, Charlie Crist, echoed calls for a federal investigation of his own state, declaring: “Justice needs to be served here.”
While these objections risk proving the intended political point of the trips, they do not prove a crime. If Attorney General Merrick Garland were to yield to this pressure, he would saw off the very branch of government on which his department sits.
Although Martha’s Vineyard previously declared itself a sanctuary for migrants, it declared a “humanitarian crisis” this week when some 50 individuals were flown there from Florida, and it denounced their arrival as a potentially criminal act.
Other leaders, such as D.C. Mayor Muriel Bowser, have demanded the deployment of the National Guard when border states shipped migrants to their jurisdictions. In Illinois, Gov. J.B. Pritzker did precisely that — called out the Guard.
The border-state governors have responded that the groups bussed or flown to other jurisdictions are just a tiny percentage of those pouring over their borders, projected to be more than 2 million this year alone.
Yet Newsom’s demand that the Justice Department prosecute such transfers would create a dangerous precedent, one that might backfire on the Biden administration.
The Biden administration has transported thousands of migrants across the country with little public notice, including late-night flights denounced by Republicans as clandestine “ghost flights.” Those transfers have been defended by Democrats and others as standard practice in the past three administrations. This, as thousands of migrants regularly overwhelm border towns despite administration officials — including Homeland Security Secretary Alejandro Mayorkas and, most recently, Vice President Kamala Harris — insisting the border is secure.
The trips arranged by the three Republican governors have been denounced as a political stunt. And, indeed, they are — but they are not criminal acts, absent new evidence of compulsion or fraud. There are reports of some migrants demanding to be allowed off buses en route to New York, and some migrants are quoted as saying they were induced with promises of opportunities or care in sanctuary cities. Yet there is no evidence of systemic fraud or misrepresentation. Moreover, even if there was misrepresentation, it would not constitute some of the crimes being claimed on cable television, including Hillary Clinton declaring that it constitutes “literally human trafficking.”
Most migrants do not intend to remain in border communities with a huge influx of migrants and limited opportunities — one reason why the Biden administration has moved migrants elsewhere. Thus, if the administration pursued Newsom’s allegation of a possible “civil rights conspiracy in violation of 42 U.S.C. section 1985,” it would potentially make a case against itself. If these governors are discriminating on the basis of national origin, so is the administration.
Let’s consider a few of the other alleged crimes suggested by politicians and pundits:
Kidnapping, human trafficking
The claim by Newsom and others that this could constitute kidnapping is absurd. Kidnapping requires that the culprit “unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person.” There is nothing unlawful in conveying individuals who are lawfully in the country pending their immigration hearings; the trips are voluntary, and most migrants appear eager to accept free passage to cities like New York or Chicago.
Human trafficking — a charge suggested by some law professors — is prosecuted by the Justice Department when you exploit “a person for labor, services, or commercial sex.” Gov. DeSantis may have overt political motives for transporting migrants to Martha’s Vineyard, but even cable-news programs have not suggested he is doing so for sexual or labor exploitation.
Racketeering
RICO was designed to combat organized crime by allowing criminal charges based on a pattern of underlying criminal acts. Under 18 U.S.C. § 1961 there is a list of “predicate offenses,” and at least two of those crimes can create the needed pattern for prosecution. But there is no established RICO pattern here because there are no established predicate crimes. An effort by the Biden administration to designate political opponents as “racketeers” would raise deeply troubling concerns about weaponizing the criminal justice system.
Illegal transport
One of the most-cited bases for criminal prosecution has been 8 U.S. Code § 1324, which prohibits transporting or attempting to transport undocumented migrants. The law is designed to combat smugglers, not states offering free trips to those released into the country by the federal government. It requires an act of “knowing or in reckless disregard of the fact” that the migrant “has come to, entered, or remains in the United States in violation of law.”
These trips, however, are not in violation of law or “in furtherance of such violation of law.” The Biden administration’s controversial “catch and release” policy means migrants are free to go anywhere or accept trips from public interest groups, the federal government or the states.
In theory, public interest groups arranging for transportation or individuals giving rides to migrants could be prosecuted on the same basis under Section 1324. In reality, if transporting undocumented migrants after they are released into the country is to be judged criminal, then the Biden administration would be the largest “coyote” in history.
None of this, of course, may prevent Attorney General Garland from using these wild accusations to launch a federal investigation. Biden officials are reportedly discussing options for legal action. Garland may yield to such demands. After all, he was criticized for creating a nationwide task force at the behest of school boards to investigate parents who publicly challenged board members over issues like teaching critical race theory or diversity policies. Such a move would magnify concerns about the Justice Department being used for political purposes before the midterm election.
The governors’ critics are correct: These trips are politically motivated. That is precisely why the proper response is also political, not criminal. Using the criminal code to amplify political points is a dangerous precedent. Frustrating though it may be for sanctuary cities to face an influx of undocumented migrants, criminal irony still is not an offense under the federal code.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.