Group #2 Immigration - Deportation & Detention
• Danger at the Border: Constitutional Remedies for State-Created Harm
Lori Nessel & Jenny-Brooke Condon, Seton Hall Law School
This article advances a state-created danger theory of constitutional protection to assess the harm inflicted upon migrants at the southern border. Typically, legal and policy responses to refugee crises are framed in terms of providing safety and protection to those fleeing persecution or humanitarian disasters. These critiques focus on the failure to meet refugee, domestic, or moral obligations. We argue that this framing is incomplete because it fails to take into account the U.S. role in creating and inflicting harm. Commentators have long lamented the state-created danger doctrine as narrow and impossible to meet. But our article emphasizes that state and federal courts alike have recognized the theory as a meaningful constitutional restraint even though they have been hesitant to find circumstances warranting damages. A 2019 district court decision applied the doctrine to current restrictive immigration enforcement—a decision that constitutional scholars described as “pathbreaking.” Building upon this reasoning, we chart the development of the state-created danger doctrine and show that the problems posed by recognition of substantive due process restraints on removal and transfer are not insurmountable and do not justify the failure to recognize qualifying immigration enforcement as state-created harm.
• Abolition as Apocalypse: The Role of Speculative Fiction in Immigration Policy
Matthew Boaz, Washington and Lee University School of Law
This paper considers how apocalyptic/post-apocalyptic speculative fiction has been wielded to implement destructive U.S. immigration policy. I then propose how alternative speculative visions could serve as a platform for radical imagination about future U.S. immigration policies, specifically the abolition of immigration detention and/or enforcement.
First, I analyze the use of Jean Raspail’s “The Camp of the Saints” by the Trump administration to garner support for its harmful immigration policies. This xenophobic apocalyptic/post-apocalyptic novel envisions the demise of Western civilization at the hands of mass migration.
Second, I promote the idea that apocalyptic/post-apocalyptic speculative fiction can be useful and generative for imagining new immigration policies in the U.S. Specifically, I claim that the experience of the coronavirus epidemic and resulting effects created a nation-wide (if not worldwide) sense of apocalypse. Such a collective experience provides an opportunity for universal reconsideration of historical policy norms, particularly those involving immigration.
Last, I note that it is essential that these alternative visions be sourced from “oppositional storytellers,” to use Richard Delgado’s phrase. Examples abound: W.E.B. DuBois’ "The Comet," the legal scholar Derrick Bell’s "The Space Traders" and other, more literary authors, such as Octavia Butler. In fact, a whole subgenre is dedicated to Afrofuturism. I offer additional visions, such as Waubgeshig Rice's “Moon of the Crusted Snow" and Omar El Akkad’s “American War” as examples for reframing conceptions of ‘apocalypse’ from the viewpoint of the marginalized in Western culture. I conclude that, while abolition may seem apocalyptic to some, it is manifest and necessary.