• Ideas
  • politics

Republican Governors Shipping Migrants Around the Country Is a Disturbing Attack on the Constitution

4 minute read
Feldman is Professor of Law and Associate Professor of Philosophy at Georgetown University Law Center

Last week, Florida’s governor, Ron DeSantis, paid a private charter company to fly migrants from San Antonio, Texas to Martha’s Vineyard, Massachusetts. As more facts have come to light about how migrants were deceived into taking these flights, one civil lawsuit seeking damages on behalf of the migrants has already been brought against DeSantis. He may also be subject to criminal prosecution.

Politics and elected office aside, it is unlawful to lure people to travel by lying to them about their destination and making false promises about the benefits available upon arrival. But DeSantis’ actions were not merely the conduct of a person hiring a private plane and tricking people into traveling out of state. They were efforts by a Republican red-state governor to protest federal immigration law and policy by shipping migrants to a progressive state in order to create disruption there.

DeSantis’ flights resemble trips sponsored by other red-state Republican governors this summer. For months, Arizona Gov. Doug Ducey and Texas Gov. Greg Abbott have been hiring buses to take migrants out of their states to Illinois, New York and Washington, D.C. Their avowed purpose, like DeSantis’, was to sow discord and disturbance in liberal states and cities.

President Biden and others have derided these trips, as well as the ones arranged by DeSantis, as “political stunts.” They are more disturbing than that. They are lawless acts, deliberate attempts by some states, acting through their governors, to contravene the basic premise and purpose of the union established by the U.S. Constitution.

States have always had to find ways to coexist even when they have divergent interests or policy preferences. The Constitution itself was adopted to resolve coordination difficulties the states had in matters such as national defense, the conduct of foreign affairs, the creation of a common currency, and financing a national government. The federal courts, also established by the Constitution and further developed by Congress, provide another avenue where states can peacefully and lawfully resolve their differences, adjudicating particular disputes that arise between them. Even before such fights ripen into lawsuits, states, like individuals, sometimes need to negotiate terms of cooperation with one another. There is an established legal mechanism for doing this, called an interstate compact. It, too, is rooted in the United States Constitution, which has been interpreted by federal courts to set ground rules for ensuring such state-to-state agreements have the assent of the federal government.

Texas, Arizona, and Florida are all already party to numerous interstate compacts, spanning everything from multistate lotteries to water apportionment to child custody and adoption to professional licensing. Had Abbott, Ducey and DeSantis been trying to develop multistate mechanisms for accommodating asylum seekers and other lawful migrants, they could have approached their counterparts in other states to hash out an agreed upon plan.

Instead, Abbott, Ducey, and now DeSantis have chosen to ambush the governments of sister states by surprising them with the arrival of busloads and planeloads of migrants at unannounced times and places. They have refused requests from mayors in other states to work together. The buses and planes sent by Abbott, Ducey, and DeSantis discharge their passengers wherever will get the most press coverage or will cause inconvenience and difficulties for residents and government responders.

The U.S. Constitution does not explicitly forbid one state from purposely creating disorder in another. But attempts to do this subvert one basic premise for joining together in legal union: peaceful, cooperative co-existence among states, as well as between them and the federal government. As state governors, Ducey, Abbott, and DeSantis have acted extra-constitutionally, even anti-constitutionally. While they have not launched armed attacks on other states or the federal government, they have shown a refusal to participate in the basic design and ambition of the American constitutional union. That is a step toward secession.

More Must-Reads From TIME

Contact us at letters@time.com

TIME Ideas hosts the world's leading voices, providing commentary on events in news, society, and culture. We welcome outside contributions. Opinions expressed do not necessarily reflect the views of TIME editors.