plenary power


Follow the link below to hear NYU Law Professor Cristina Rodriguez’ lecture at Yale Law School entitled Burden Sharing in an Age of Migration.
Graphiti Art in Bethlehem

Graphiti Art in Bethlehem

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The next three week’s readings come from Martin Luther King’s most influential book, Why We Can’t Wait.  In this week’s chapter, “The Sword That Heals,” Dr. King discusses many of the same principles that we have discussed in earlier weeks.  This time, the principles of nonviolent civil disobedience are told in their historical context.

 

Civil Disobedience

            One of the most persuasive passages I’ve read about civil disobedience comes from this chapter.  Dr. King wrote,

          There were no more powerful moments in the Birmingham episode than during the closing days of the campaign, when Negro youngsters ran after white policemen, asking to be locked up.  There was an element of unmalicious mischief in this.  The Negro youngsters, although perfectly willing to submit to imprisonment, knew that we had already filled up the jails, and that the police had no place left to take them.

            When, for decades, you have been able to make a man compromise his manhood by threatening him with a cruel and unjust punishment, and when suddenly he turns upon you and says: “Punish me.  I do not deserve it, I will accept it so that the world will know that I am right and you are wrong,” you hardly know what to do.  You feel defeated and secretly ashamed.  You know that this man is as good as you are; that from some mysterious source he has found the courage and the conviction to meet physical force with soul force.

            So it was that, to the Negro, going to jail was no longer a disgrace but a badge of honor.

When I read these paragraphs, I am completely convinced that nonviolent civil disobedience—when practiced widely—has more power to break the psychological shackles of unjust laws crippling our community than almost any other principle.  Moving across international borders to pursue happiness is not wrong!  We must stop acting like it is.  We must challenge (not just ignore) the laws that prevent that pursuit.

 

Constitutional Litigation

            In this chapter, Dr. King gave a summary of the various approaches for equality since Emancipation.  He started with Booker T. Washington’s admonition to work hard, moved on to W. E. B. Dubois’s call for education, explained Marcus Garvey’s ideas about racial pride and a return to Africa, and ended up describing the NAACP’s recourse to Constitutional litigation.  It is then that Dr. King said, “Nonviolent action, the Negro saw, was the way to supplement—not replace the process of change through legal recourse.”

            This quote brings me back to a problem I have been wrestling with for quite some time, without sufficient success.  What success can we hope to see in a civil disobedience campaign without Constitutional litigation?  This is difficult because of the plenary power doctrine, which says that Congress has absolute power of the area of immigration and the courts cannot overturn its legislation.  If the Supreme Court is unwilling to apply the Constitutional guarantees to immigration law, how damaging is that for us?  How necessary is litigation in the fight for rights in the United States?

Nonviolent vs. Violent Reform

            I love King’s quote here in pages 27 and 28, and just have to share it.

          Angry exhortation from street corners and stirring calls for the Negro to arm and go forth to do battle stimulate loud applause.  But when the applause dies, the stirred and the stirring return to their homes, and lie in their beds for still one more night with no progress in view.  They cannot solve the problem they face because they have offered no challenge but only a call to arms, which they themselves are unwilling to lead, knowing that doom would be its reward.  They cannot solve the problem because they seek to overcome a negative situation with a negative means….  The conservatives who say, ‘Let us not move so fast,’ and the extremists who say, ‘Let us go out and whip the world,’ would tell you that they are as far apart as the poles.  But there is a striking parallel: They accomplish nothing.

Let us not be guilty of the same accusation.  When I am properly trained, I plan to actually do what I’m talking about.  I plan to break the law and submit myself to arrest.  I am trying to get in contact with a law student who is organizing a civil disobedience campaign for this summer in the Arizona desert.  He plans to defy the law that makes it a felony to aid someone that a reasonable person would consider to be an “illegal immigrant.”  Given that people are dying in the desert, he plans to provide food, water, and a car ride to anyone who needs it.  I’m hoping he plans to get arrested.  If so, I’ll likely join him.

 

The African American Example

            Dr. King knew this day would come.  On page 31, King said, “The Negro saw that by proving the sweeping and majestic power of nonviolence to bring about the beloved community, it might be possible for him to set an example to a whole world caught up in conflict.”  He often said some variation of,

          When the history books are written in the future, somebody will have to say ‘There lived a race of people, black people, fleecy locks and black complexion, of people who had the moral courage to stand up for their rights.” And thereby they injected a new meaning into the veins of history and of civilization.

When I study history, I am compelled to say it – to quote it just like King said it.  When I study history, I am compelled to look at the sacrifice of the hundreds of thousands who marched, the thousands who were jailed, the hundreds who were beaten, and each person who was killed, and say ‘I will not let your lesson go unlearned.’

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The popular debate in the media over immigration is almost always about what the ideal immigration policy should be, from the financial perspective of native born U.S. citizens. This is an awful way to debate an issue that is entirely a question of human rights, as I see this issue. But let me make it clear, this campaign is for those who reject the current debate and affirm that this is an issue of rights. Specifically, it is for those who would like to see the right for free movement of people across borders to be acknowledged and protected by the United States.Given that purpose, what about the wall? What about the National Guard at the border? What about the House bill to make crossing the border without permission a felony? Well, all of that gets sorted out in unexpected ways when you decide that your ultimate goal is to secure the right of free migration.

For instance, I personally hope that “illegal” immigration does become a felony, but for very different reasons than those who proposed the law. I would like to see so-called “illegal” immigration become a felony for two reasons. First, as Dr. King said, “I know that only when the night is dark enough can you see the stars.” I plan to use the methods of nonviolent civil disobedience as developed by Mohandas Gandhi and Martin Luther King Jr. to bring about a dramatic change in immigration policy, and I believe that those methods are more likely to be successful if the civilly disobedient activist is jailed rather than deported. Second, under the current legal tradition, immigration law is unprotected by the Constitution because the Supreme Court has abdicated its role as it relates to immigration law. But I feel very confident that if immigration were tied to criminal law rather than administrative law, the Supreme Court would have to take up the issue. If it did, the Court would have very little choice but to make drastic changes in the law because our current immigration law is explicitly sexist and implicitly racist. The Supreme Court itself has said as much, but has said that Congress is in charge of immigration law (the plenary power doctrine), so they can be as sexist and racist as they want to be. This is an abdication that I do not believe they would continue if immigration violations were made criminal.

Because the current debate encourages us to think in a very limited way, I invite you to do your own research on the right of free movement across borders.

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