1 Introduction

Cities have become key players in all manner of policy areas concerned with the mobility of humans, labor, and capital. They co-govern settlement and integration programs, help administer temporary foreign work regimes, bolster migrant civic engagement, and provide access to core social services such as health, education, transit, and housing. Many cities also contradict national immigration policies through sanctuary policies and other strategies of inclusion that help growing numbers of non-status or unauthorized migrants navigate exclusionary national and provincial/state laws. The sheer scale of local involvement in migration changes the way we understand cities, borders, citizenship, and constitutions.Footnote ¹ This is especially true of federal states, which promise local autonomy but which, in truth, have established records of delimiting municipal authority and redirecting centrifugal forces in the service of nation-building.Footnote ² Sanctuary policies and other aspects of local migration governance provide opportunities to reflect on the robustly democratic heritage of federalism, including its capacity for managing the tensions, contradictions, and occasional violence that erupts when a plurality of political communities occupy the same physical space.

But federalism comes in many forms, and the form that predominates in doctrine represents a different history – a different set of functions.Footnote ³ In the context of Canada and the United States, judicial interventions in disputes about jurisdiction are premised on the twin myths of dual sovereignty and political neutrality. The former describes sovereignty as a finite resource, exhaustively divided between federal and local scales with each level of government reigning supreme in its allotted sphere. The latter holds that the role of courts is to police this division of powers by enforcing the plain language of constitutional text. In this way, disputes about migration center around how to classify the “core” subject matter of a policy and then to determine which level of government is “naturally” authorized to govern it. Given that the act of defining is the act of deciding, and that the judges who ultimately decide these questions are appointed by federal governments, the myth of judicial impartiality was indispensable to the core function of federalism: preserving political stability. At root, the symbolic depoliticization of judicial interventions serves to avoid a reckoning with the political bases for choices about who has power over what issues.

Sanctuary city policies are not well served by this kind of federalism. They are not simply matters of migration or local administration but are also part of the broader history of city-building, urban resistance to racial and economic inequalities, and the habitual political disenfranchisement of municipalities- these are issues that require confronting the political choices underlining distributions of authority and that will not be resolved under a facade of a pristine constitutional equilibrium. But federalism doctrine is a hard habit to beat. It is everywhere in academic, policy, and public discourse about sanctuary cities, which reduce it to questions of whether cities can deliver on their promise of providing safe space within which federal authority has no sway. The very use of the term “sanctuary” draws from the same motifs as federalism, which recommends that “the best way to protect minorities is to give them an exit option.”Footnote ⁴

This chapter is concerned with the limitations of approaching sanctuary cities through the lens of federalism doctrine. One way of doing this would be to join with others in exploring how municipalities, local public institutions, and non-state actors have assumed jurisdiction over broad aspects of migration without challenging federal sovereignty over citizenship and borders. Rose Cuison Villazor and Pratheepan Gulasekaram have recently done this through a careful study of how trans-local sanctuary “networks” composed of churches, educational institutions, unions, and other institutions scale locally generated resistance up to the federal scale, invoking federal statutory and administrative law to unravel immigration enforcement from within.Footnote ⁵ I will approach this issue from the opposite angle, which is how federal immigration authorities scale down to the local level, indirectly using local laws and powers to amplify their own jurisdiction within and through the city without directly challenging local sovereignty. Somewhat like sanctuary networks, the result is the movement of locally generated data identifying non-status migrants to the federal scale and, through the subsequent management of migrant populations, the conscription of local authority in the service of immigration enforcement. Spatially mobile border regimes cross from national to local and back again in spaces of shared jurisdiction, without directly contesting the precept of dual sovereignty.

The chapter uses the example of urban securitization in Canadian sanctuary cities to explore how federal immigration authorities have extended their reach beyond their jurisdictional grasp by tapping into the wellspring of locally generated data on populations and individual persons. This occurs in many ways, but my focus will be on partnerships between federal immigration authorities and local police. On the one hand, Canadian immigration authorities lack the operational capacity to conduct robust inland enforcement or to independently acquire data on non-status migrants. On the other hand, local police have drawn from logics of risk management and predictive policing to expand their access to the personal information of migrants through arrests, detentions, streets checks, and their access to information “hubs” in such areas as health, education, and social work.Footnote ⁶ Through interviews with local police agencies in Ontario, I outline the rationale for sharing these data with immigration authorities and the ways they use jurisdiction to avoid democratic accountability. The resulting picture is one of a sanctuary city where the punitive logics of surveillance, control, exclusion, and banishment operate with the greatest intensity.Footnote ⁷ The realities of securitization establish quite clearly that federalism’s promise of exit from national sovereignty (or, more accurately, sovereign power) is not to be had – not for migrants or sanctuary cities.

The chapter is organized as follows. In Section 1, I survey the weaknesses of federalism as applied to sanctuary cities, using as examples two leading theoretical perspectives on sanctuary cities in federal states: urban political economy and urban citizenship. In Section 2, I examine other ways of thinking about jurisdiction, focusing on the case of urban securitization. In Sections 3–7, I use data sharing between local police and federal immigration authorities in Canada to examine how federalism both facilitates and obscures shared jurisdiction over the border. I conclude by reflecting on the implications this has for sanctuary cities.

2 Sanctuary Cities in Federal States

It would be useful to begin with a review of sanctuary city policies in the United States, which have generated the most concrete and detailed scholarly record. Although sanctuary practices and policies in this setting are clearly concerned with rights, scholars, policymakers, and jurists predominantly approach them by reference to immigration federalism.Footnote ⁸ On this basis, sanctuary cities sit within subnational sovereign spheres, migration sits within the federal sphere, and jurisdictional conflicts emerge only when one level of government trespasses onto the space of the other. It should be noted that disputes are almost always connected with the question of data and who “controls” it: can local governments constitutionally withhold locally generated information about immigration status from immigration authorities and, phrased from the other angle, can federal governments compel disclosure of this information? Other questions emerge, to be sure, but control over data and whether to classify it as “local” or “national” is the starting point of any effective sanctuary policy or, for that matter, any border enforcement regime. Without it, governments cannot effectively implement, evaluate, refine, or account for policy.

The law of federalism provides a deceptively simple approach to the exceptionally complex problems posed by data politics. Cities may pass sanctuary laws if those laws are “truly” local in character and are only incidentally concerned with immigration. In turn, federal governments may not compel cities to conduct or facilitate immigration enforcement. These questions are settled by reference to precedent established in relation to the Tenth Amendment anti-commandeering clause, which protects local governments from being conscripted into administering federal policies, and the doctrine of preemption, which allows the federal government to override local laws under a range of conditions, including if a local law is an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”Footnote ⁹ Federal courts have consistently ruled that the federal government cannot compel state and local cooperation in immigration enforcement, upholding sanctuary city and state laws that preclude, among other things, the sharing of locally generated data with federal authorities, even if that data pertains to immigration status.Footnote ¹⁰ It should be noted, though, that anti-sanctuary laws have also passed constitutional muster. The authority of Charter cities to disobey California sanctuary laws was recently upheld, as was a Texan law forbidding cities from passing sanctuary policies.

Legal scholars have done an excellent job analyzing this jurisprudence,Footnote ¹¹ but my interest is in how the concepts and categories of federalism doctrine have found their way into social science analyses of sanctuary. One example is what I will loosely term “urban political economy.” On this view, the fiscal and political capacities of cities are the primary variables explaining the nature and efficacy of sanctuary and other local access policies.Footnote ¹² Els de Graauw’s rich empirical work documents an official consensus among municipal officials that sanctuary is at most concerned with providing precarious and non-status inhabitants of a city access to services and rights to which they are already entitled as a matter of local law. But the legal authority to provide access does not settle the question of whether municipalities will either actively remove barriers to access or defend their authority to withhold data from federal authorities. As De Grauuw notes, these decisions are made on the basis of the political and economic consequences of rebuffing federal authorities. While big cities such as Chicago, New York, and San Francisco successfully fought against the Trump administration’s attempt to withhold federal funds from sanctuary cities, this was an exceptional situation. In the long run, cities need to have workable relationships with federal governments in order to manage global policy issues, of which migration is one. As democratic institutions, municipalities must also be attentive to the will of the electorate, which can be decisive in how ambitious sanctuary policies will be.

Urban political economy has the merit of describing at least official consensus that cities are bound by federalism doctrine. Few municipalities see sanctuary as a step toward rescaling authority over citizenship from the national to the local sphere. But bundled within these descriptive claims are a series of political claims that have to be placed into the much larger history of the relationship between federalism and nation-building. It is true that cities lack the constitutional capacity to assume the degree of political and fiscal independence that would enable them to adopt more ambitious policies and practices, but it is also true that they have done precisely that in other areas, including health, the environment, and economic development.Footnote ¹³ And equally important from this point of view is that federal governments facilitate and tolerate expansions of municipal jurisdiction in these fields, sharing jurisdiction without concentrating on the final question of who is ultimately sovereign in these spheres. While migration is among the most sacred of subject-matters from the standpoint of nation-building, even here, federal governments recognize and encourage expansive municipal roles in migration policy, including settlement and integration, which are understood to be inseparable from health, education, labor, and so on.Footnote ¹⁴ We can recognize the reality of official consensus over the federal government’s claims to a monopoly over migration while also recognizing that the actual governance of migration is far more fluid and complex than this.

Urban citizenship theory offers a second account of sanctuary that picks up on this point. Best represented by critical geographer Harald Bauder, this perspective constructs sanctuary cities as a “scale of formal belonging,” which can “supersede regional and national scales.” They do so through a mix of social, political, and legal factors. The social and political factors include the bare fact of inhabitance and repeated social interactions organized around discourses of inclusion, which can produce postnational sociopolitical identities and alter the form and organization of political communities.Footnote ¹⁵ The legal aspect is trickier. Bauder argues that local jurisdiction over migration and citizenship can be grounded in lex domicilii, an ancient body of (private) international law that grounds jurisdiction (including rights) in the physical location of a party to a dispute. This domicile principle can be contrasted with lex patriae, which in the Westphalian system establishes jurisdiction by virtue of national citizenship. Other principles may also be deployed, including that of territoriality, where the location of the subject matter of a dispute determines which political community possesses jurisdiction over a dispute.

Traditionally, it is courts that would use the foregoing principles to determine which laws apply when a typically private law issue contains a “foreign” element. While frequently used to coordinate international struggles over the regulation of transnational disputes (i.e., “private international law”), these jurisdictional devices have played a prominent role in the stabilization of domestic cultural and territorial conflicts in federal states. In the early years of confederation in Switzerland, for example, courts wavered between lex domicilii and lex patriae in identifying which canton had jurisdiction over a private (though not public) law dispute.Footnote ¹⁶ Conflict of laws here played the role of softening the coerced inclusion of seven Catholic cantons into the federation in 1847, following their secession. Under this arrangement, subnational governments could regulate a range of subject matters (wills and estates, family law, torts, contracts, etc.) in the context of the internal movement of Swiss citizens across historically sovereign territories. Similarly, in the United States, courts in one state can sometimes apply their own laws to disputes that touch upon the jurisdiction of another state, but they can also apply the law of another state in its own courts based on the domicile principle. To make matters more complicated, states can also vary the scope or applicability of federal public law within their territory, including constitutional rights.

Lex domicilii has therefore been an essential ingredient to maintaining federal systems, precisely by conditioning the possibility of shared rather than exclusive jurisdiction. For this reason, it actually contradicts the premise of dual sovereignty. It is interesting that this core myth of federalism doctrine would feature in critical conceptions of sanctuary. Connecting law to postnational citizenship theory, Bauder argues that there is a distinctive “legal strength to implement policies” and “domicile rules of belonging” in both American and Canadian cities by virtue of their autonomy from federal governmentsFootnote ¹⁷ because the city is “a territorial legal entity at a different scale at which sovereignty is articulated.”Footnote ¹⁸ But when applied within federal states, the domicile principle of belonging has never been about upholding dual sovereignty. To the contrary, it has always been used along with other conflict of laws principles to engender stability through the undulation of sovereignty, and the means for this have been layerings of shared jurisdiction that perforate the hard lines of sovereign enclaves. But to be clear, this process has also been central to the nation-building enterprise; through compromise, the national political community is stabilized and fortified. This being so, it isn’t clear how the domicile principle can lay the basis for postnational political communities within or without a federal state.

I could say more about this, but I will summarize this section by saying that the legal strength of cities is reduced to dual sovereignty in each of the accounts canvassed here. Urban political economy sees federalism as a source of legal weakness, where sanctuary cities lack the authority to govern the core moral subject matter at issue: migrant rights qua migrant rights. But this obscures the realities of shared jurisdiction that flow from city-building in a broad range of policy domains that can be brought to bear in sanctuary cities. Federalism doctrine also limits our imagination in urban citizenship theory, which starts well enough by rejecting the nation-building premise that citizenship and migration are inherently federal in character. But if not for the cover provided by sovereign subnational governments, cities in federal states would not differ from those in unitary states in terms of their “legal strength” – and this cover is occasional and always conditional. Worse, the legal materials invoked to support the transfer of jurisdiction from federal to local scales have actually been instrumental in fortifying national political communities.

3 Urban Securitization in Federal States

One way of responding to these problems would be to abandon federalism altogether. Rosa Cuison Villazor and Pratheepan Gulasekaram take this route, arguing that “discussion of the term ‘sanctuary’ remains obsessed with state and local rights,” reducing it to a “federalism contest” that pits federal jurisdiction over migration with “the right of states to control their own affairs as independent, constitutional actors.”Footnote ¹⁹ This is a strong point: denied constitutional autonomy, municipalities and other local public institutions are so often seen merely as “creatures” of states or provinces. But Villazor and Gulasekaram wisely distinguish jurisdiction from sovereignty, noting that municipalities and other local public institutions wield considerable authority within key policy fields and are adept at protecting this authority against federal incursions. Institutions of note include universities, hospitals, schools, business organizations, religious organizations, and digital sanctuary networks. Like municipalities, these institutions draw on jurisdictional devices other than federalism, including constitutional rights, common law, administrative and regulatory law, and statutory regimes. Universities, for example, have common law rights to prevent access to campuses and are actually obligated to maintain the privacy of student information under the Federal Education Rights and Privacy Act.Footnote ²⁰ This example is especially important because the local authority in question is sourced in federal law, drawing a direct line between local public institutions and federal legislative bodies. This reminds us of the importance of the separation of powers, whereby federal executive actions, such as border enforcement, can be contained by invoking the limits built into federal statutes.

What emerges is a picture of jurisdiction that associates municipalities with local (nonstate) institutions as much as or more than higher levels of government, and which eschews the precepts of dual sovereignty inherent to federalism doctrine. Two matters of interest bear noting. First, local authority can be defended by reference to separation of powers within the federal scale, rather than simply the spaces the division of powers affords within the local scale. The sites of contestation vary, but resistance to inland border enforcement occurs in local and subnational institutions (division of powers) as well as within federal courts, legislatures, and administrative agencies, all of which impose checks and balances on pure executive power (separation of powers) at the federal scale. Second, we are reminded that nonstate actors possess legal authority and identities that shape the production, interpretation, and application of state law, with interesting implications for political conceptions of sovereignty and how we define “the city.” Local nonstate actors and nonmunicipal, local public institutions share in the production and interpretation of federal immigration law across multiple scales, often in tandem with municipal governments with whom they co-govern key policy fields.

But the legal pluralism we see in local spaces is content-neutral.Footnote ²¹ The legal modalities of sanctuary networks are not unique, as their antagonists – security professionals – are equally nimble, if not more so. The securitization of migration in and through local laws is by now well advanced, producing new practices, agents, and spaces of border control.Footnote ²² While on the surface concerned with the maintenance of borders, urban securitization actually represents the collapse of territorial divisions between “internal” and “external,” blurs jurisdictional lines, and betrays anxieties about the nature and future of the nation-state. It is worth lingering on this point before relating it back to sanctuary cities.

The so-called externalization of borders is a well-known process involving the “territorial and administrative expansion of a given state’s migration and border policy” to foreign states and jurisdictions.Footnote ²³ Central to this process is a set of intentions or habits through which state power is fortified by means of the dispersal, pooling, or integration of sovereignty in the international field. Interdiction, digitization, the collection and sharing of information, and other global preventive and deterrent measures are part of the process, as are regional mechanisms of “opening” borders for desirable migrants and “closing” them for the undesirables. While this process presents opportunities to harden borders, it also threatens them and reveals the incapacity of nation-states to manage their borders alone. The rise of populism and the breaking apart of the United Kingdom from the EU reflect well how regional and international integration can be perceived as a loss of sovereignty.Footnote ²⁴

Varying conceptions of bordering practices shed light on a similar process of border “internalization.” Critical border studies describe national borders, not as fixed territorial or juridical lines, but instead as a set of spatially mobile performances, practices and technologies of exclusion and inclusion, often operating in connection with racial, colonial, and economic hierarchies.Footnote ²⁵ They too involve forms of interdiction, data-production and sharing, and the integration of functionally disparate agencies in the management of human mobility. Tellingly, state officials and xenophobic populists worry about the loss of sovereignty when management of borders is shared with external sovereigns, but when borders shift internally, the illusion of dual sovereignty remains: Local power to enforce the border is “delegated,” while legal control over citizenship and migration remains in the hands of the federal government alone.

Federalism doctrine plays the role of maintaining this illusion, obscuring how sovereign practices, understandings, relations, and institutions (what we might call assemblages) cut across territorial and jurisdictional divides.Footnote ²⁶ It does so in part by drawing artificial distinctions between the fields of migration and security, when the two are coeval political constructs. In constitutional terms, the former is reserved for federal governments, while the latter is of concern to all governments and is not subject to the precepts of dual sovereignty. Shared jurisdiction over matters of crime and security is the key to maintaining the illusion. Associations between irregular migration (a federal matter) and criminality (a shared federal/local matter) create space for local police and federal immigration/border authorities to pool operations, funding, and jurisdiction over such matters as human trafficking and people smuggling, drug and arms trafficking, terrorism, and transnational organized crime. In this way, federal immigration authorities receive data collected by local police and security agents but, by virtue of the myths of federalism, they can insist on exclusive control over borders. In other words, the policing of irregular migrants is primarily about criminal law enforcement and has only incidental effects on federal immigration law and policy. As I will proceed to show, the Canadian context reveals the dynamics of shared jurisdiction over crime/security and shows that, far more than federalism doctrine, it is urban securitization that determines the legal strengths and weaknesses of the sanctuary city.

4 High in Demand and Short in Supply: Data Collection at the Federal Scale

It is best to start at the federal scale, before drilling down to the local scale. As with many other nations, the securitization of migration in Canada was deeply affected by a suite of legislative, policy, and operational changes made post-9/11.Footnote ²⁷ Just prior to 9/11, parliament amended the Immigration and Refugee Protection Act, introducing a range of preventive and deterrent measures and the partial dismantling of the refugee status determination system.Footnote ²⁸ But the events of 9/11 permitted even greater operational changes, the most significant of which was the creation of the Canada Border Services Agency (CBSA) in 2003. The CBSA was an amalgamation of disparate customs and border authorities that were, until this time, strewn across several ministries, including what was then termed Citizenship and Immigration (now called Immigration, Refugees and Citizenship), Customs and Revenue, and the Canada Food Inspection Agency. Parliament enacted the Canada Border Services Agency Act in 2005, which rendered the CBSA fully operational.

The CBSA is housed within Public Safety Canada (PSC). This is the core security and criminal justice ministry in the country, which contains Canada’s federal police agency, the Royal Canadian Mounted Police (RCMP), Corrections Canada, and Canada’s primary security intelligence agency, the Canadian Security Intelligence Service (CSIS).Footnote ²⁹ The CBSA is vested with broad authority to enforce both the Immigration and Refugee Protection Act and a wealth of criminal law statutes, including the Criminal Code. As a law-enforcement agency, the CBSA employs technologies and practices similar to those used by police services, through its Criminal Investigations Division. It also possesses limited security intelligence powers. The CBSA has authority to partner with international agencies, which it uses to gather information, facilitate deportations, and physically obstruct access to Canadian territory.Footnote ³⁰ It works regularly with the United States in this respect.Footnote ³¹

The CBSA is legally and functionally unique, being the only entity within PSC that is not subject to independent oversight and review. Unfortunately, it is the only federal agency empowered to conduct both policing and security intelligence operations. The one saving grace is that the CBSA does not have particularly strong security intelligence powers nor is it well positioned to conduct policing operations or, for that matter, border enforcement between ports of entry. This is evident in the pivotal role played by the RCMP in policing the Canada–US border between ports of entry to stem the inflow of asylum seekers between 2017 and 2020.Footnote ³² Meanwhile, CSIS remains the premier security intelligence service in the country, handling the most serious security files in the immigration context. The CBSA’s role is principally geared to staffing ports of entry and overseas liaison work, with only 6,500 uniformed officers; this leaves very little for inland enforcement.Footnote ³³

Unsurprisingly, information is one of the pillars of Canadian security. When it passed its first-ever national security policy in 2004, the federal government stated that the “key to providing greater security for Canadians and to getting the most out of our security expenditures is to co-ordinate and better integrate our efforts.”Footnote ³⁴ Ever since, it has tried to smooth the flow of information, both domestically and internationally. One especially important year was 2015, when parliament passed the Security of Canada Information Sharing Act. This law mandates the sharing of security-based information among at least seventeen federal institutions, with special focus on those operating out of PSC.Footnote ³⁵

But as net importer of intelligence, Canadian policing, border, and intelligence agencies have a long history of competing with each other and jealously guarding data and sources.Footnote ³⁶ This is evident in the absence of an official interoperable security database accessible by all federal agencies with security mandates; data are contained in institutional silos and shared only on request and following high-level authorization. There are a handful of field-specific interoperable databases, including some linking border control and policing, but very little is known about them. The largest one is the Global Case Management System, which is a database shared by the CBSA and Immigration, Refugees and Citizenship Canada. It contains personal information related to citizenship and immigration applications, including name, date of birth, country of birth, address, medical details, education, and criminal history. Another is the Canadian Police Information Centre (CPIC), which is a central database that contains information “about crimes and criminals.”Footnote ³⁷ The CBSA has access to this database. Managed by the RCMP, it is “the only national information-sharing system that links criminal justice and law enforcement partners across Canada and internationally.”Footnote ³⁸ The CPIC is interfaced with the US’s National Crime Information Centre, so that the American authorities have access to the CPIC (but not information regarding young offenders) and the CBSA (and Canadian police) have access to American criminal databases.

It is within this context one must approach both inland border enforcement and urban securitization. On the one hand, the CBSA is legally vested with immigration, criminal, and security intelligence powers and is located in the heart of Canadian security and criminal justice governance. On the other hand, it is set adrift in a sea of informational scarcity alongside much larger, more mature, better resourced, and politically adept security and policing agencies. As a result, it focuses its efforts on the physical border, various interdiction and externalization strategies, and smoothing deportation and inadmissibility processes. Full-scale inland border enforcement is limited by these incapacities, although it has found workarounds in the form of partnerships with local public institutions with access to data.

5 Data Sharing between Local and Federal Institutions

It should be noted at the outset that there is no uniform body of law governing the sharing of data between federal border agencies and local partners in Canada. What we find is a patchwork of provincial privacy legislation, common law, and the occasional Memorandum of Understanding (MoU) between the CBSA and provincial or municipal bodies.Footnote ³⁹ Provincial privacy legislation is the most comprehensive of these, providing discretionary power to local public institutions to disclose for the purposes of aiding investigations by “law enforcement” agencies. A typical wording is found in s. 42(1)(g) of Ontario’s Freedom of Information and Protection of Privacy Act, which states disclosure may be made:

The language is generally the same in other provinces, as is the express requirement or permission to comply with search warrants and other court orders.

Early efforts to secure data were rather brazen, producing powerful public backlash. In 2013, for example, the Vancouver Transit Police (VTP) detained Lucia Vega Jimenez for fare evasion, reporting her to the CBSA. Ms. Jimenez committed suicide in a CBSA holding cell in the Vancouver international airport. In 2015, the VTP terminated its MoU with the CBSA in response to public outrage and recognition that the VTP lacked a mandate to engage in immigration enforcement. Schools are another good example. In 2006, the Toronto Catholic District School Board allowed CBSA officers to enter school property to enforce immigration law. In one instance, they threatened to arrest two students unless their mother turned herself in, only to take all three into custody. In another instance, the CBSA apprehended two children and took them to a van carrying their mother and grandparents.Footnote ⁴⁰ Public outrage led to the passage of a “Don’t Ask Don’t Tell” policy in the Toronto District School Board.

Transportation authorities are a third example. In 2014, the Ministry of Transportation Ontario used powers of vehicle safety audits to stop trucks so that the CBSA could search them. One of the trucks carried twenty-one non-status passengers. The public reaction was swift and powerful, leading the ministry to terminate its partnership with the CBSA.Footnote ⁴¹ The Ministry of Transportation Ontario cited as one reason the fact that it lacked the statutory mandate to participate in border enforcement. In none of these examples did the CBSA have a warrant, and in most, they did not know the identity or location of the migrant until local authorities informed them.

It is worth pausing to consider the place of jurisdiction in these examples. Animated by migrant rights, resistance to disclosure centered around the rule of law, inflected by federalism. Each public institution noted earlier terminated its MoU with the CBSA because it recognized that open-ended sharing of data was inconsistent with the principles and purposes of its enabling legislation; privacy legislation and rights were a secondary consideration at best. The rule of law argument is underlined by dual sovereignty and the lack of any constitutional, much legislative, link between border enforcement and schools, local transport, and municipal transit. More precisely, the lack of shared jurisdiction among these institutions and the CBSA undermined the legal and political justification for systematic cooperation.

But this is not so with police, where there is shared jurisdiction both vertically with the CBSA and, increasingly, horizontally with schools, shelters, NGOs, and other local institutions. One prominent example is the criminalization of human trafficking and the regulation of sex work. Following a series of constitutional challenges, aspects of sex work have been decriminalized, with provinces and localities filling the jurisdictional space with a bevy of regulations, including municipal zoning by-laws and labor laws.Footnote ⁴² But the most relevant are sweeping antihuman trafficking laws that associate sex work with international and transnational criminality. Multimillion dollar provincial and federal antitrafficking strategies establish concrete partnerships between local police and the CBSA, which rest on the belief that human trafficking is predominantly international and associated with irregular migration. The federal government launched a five-year antitrafficking strategy in 2019, spending $75 million over six years, principally in the shared area of criminal and immigration law.Footnote ⁴³ Many provincial governments provide similar levels of funding to police as well as to NGOs, which help collect and share data for the purposes of aiding law enforcement investigations.Footnote ⁴⁴ Migrant rights organizations note that these powers are “anti-sex work, anti-migrant, and racist,” co-opt grassroots organizations through fiscal incentives and language of care, and roll out “heightened surveillance capabilities” directed at racialized migrant sex workers.Footnote ⁴⁵

Shared jurisdiction is key, cementing horizontal information-sharing partnerships between local NGOs, public institutions, and police, and vertical data sharing with the CBSA through linkages between crime, security, and the border. But it is the tip of the iceberg. According to an Access to Information request filed by No One is Illegal, the police in the Greater Toronto Area made 4,392 out of 10,700 calls to the CBSA’s “Warrant Response Centre” between November 4, 2014, and June 28, 2015, which local police officers (or any other law-enforcement officer) can use to provide the CBSA with information about a person who the officer believes or merely suspects lacks status.Footnote ⁴⁶ The Toronto Police Service (TPS) made 75% (3,278) of those calls, which is more than the RCMP (1,197), and greater “than the police services of Montreal, Quebec City, Ottawa, Calgary, Edmonton, and Vancouver combined (2,729).”Footnote ⁴⁷ What is more, “status checks” were the most common reasons for calls – 83.35% in the case of the TPS as against a national average of 72%.Footnote ⁴⁸ The Service de Police de la Ville de Montréal has also been an active collaborator, making 2,632 in 2015, 2,872 in 2016, and 3,608 in 2017.Footnote ⁴⁹ It should be underlined that more than 83% of these calls were status checks and not responsive to a federal arrest warrant.

The policing of non-status migrants has escalated while most formal partnerships between local and federal institutions have been dismantled. Indeed, police involvement in border enforcement is the most rigorous in the two most high-profile and reputedly most robust sanctuary cities in the country: Toronto and Montréal. While the rule of law and federalism have had an impact in many areas, they have been completely ineffectual in the context of policing, based precisely on the appearance of shared jurisdiction over irregular migration, when seen as a matter of crime and security. In Section 6, I will examine how local police understand the basis and scope of this jurisdiction.

6 Shared Jurisdiction over Crime, Security, and Migration

In 2017–2018, I participated in an empirical study of the local policing of non-status migrants in Ontario, led by Mia Hershkowitz, and joined by Harald Bauder.Footnote ⁵⁰ We interviewed eleven high-ranking officers (chiefs, super-intendants, etc.) in eight municipalities in Ontario (including Toronto) and asked officers to speak to their role in sharing information with the CBSA, how they perceived their role in border control, their perceptions of sanctuary policies, and their interpretations of Ontario’s Police Services Act (PSA) in these areas. While I cannot go into the details of study here, it is worth noting all officers we spoke with admitted to the routine sharing of information in the absence of a federal arrest warrant, and thought that this sharing was required by the PSA. For background, s. 5(1) of Ontario Regulation 265/98 states:

Case law is clear that disclosure in the absence of a court order is discretionary and not mandatory, and the CBSA must request specific information in the context of a specific investigation; the law does not allow for discretionary disclosure in the context of “[m]ere suspicion, conjecture, hypothesis or ‘fishing expeditions.’”Footnote ⁵¹

The first theme that emerged from the interviews was that police do not consider disclosure a form of border enforcement.Footnote ⁵² Officers insisted involvement is merely bureaucratic – a routine pushing of a file to the requisite agency. One officer stated that when non-status migrants:

This attitude aligns with associations between irregular migration and criminality, where even victims are referred to the CBSA, especially if an officer thinks the underlying crime is one of a national or international character, such as human trafficking or people smuggling.

The local boundedness of the policing of migrants is also established by reference to provincial statutes. Another officer stated:

Another officer stated:

It bears repeating that the statistics of information sharing noted earlier indicate that police are almost never executing immigration warrants but instead are proactively calling the CBSA to conduct “status checks.” If a warrant is issued, it’s only because of disclosure, not the other way around. Clearly, a warrant cannot retroactively justify the very disclosure the warrant is predicated upon.

The Toronto Police Service has provided a number of public statements that shed more light on the legal rationale for cooperation. In a 2017 hearing before the TPS civilian review body, the Toronto Police Services Board (TPSB), then Chief Mark Saunders stated the PSA and privacy legislation:

This is a strained interpretation of the PSA, which nowhere states that disclosure of identifying information to the CBSA or any federal law enforcement agency is required. It is understood, of course, that police must comply with a court order. But like provincial privacy legislation, the PSA provides discretion to disclose in any other context. Legislation specifically outlines the interests in nondisclosure that police must weigh before deciding whether or not to disclose. Section 6 of the PSA states that the decision to disclose must be based on considerations of “what is consistent with the law and the public interest.” The “law and the public interest” is defined in part through s. 4(2) of the PSA, which defines “adequate and effective police services” as including: crime prevention and assisting victims and witnesses. The principles and purposes policing itemized under s. 1 of the PSA include the following:

1. 1. The need to ensure the safety and security of all persons and property in Ontario.

2. 2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.

3. 3. The need for cooperation between the providers of police services and the communities they serve.

4. 4. The importance of respect for victims of crime and understanding of their needs.

5. 5. The need for sensitivity to the pluralistic, multiracial, and multicultural character of Ontario society.

Disclosures to the CBSA contravenes many of these principles and, to this extent, violates the rule of law. Principles 3 and 5 are undermined by the documented fact that police cooperation with immigration authorities makes it far less likely migrant communities will report crime.Footnote ⁵⁷ Principles 2–5 are undermined by the fact that racial profiling is often a feature of the policing of non-status migrants in Canada.Footnote ⁵⁸ In fact, the analogous practice of “carding” (i.e., random street checks of mostly racialized minorities) was recently prohibited through provincial changes to the PSA regulations in 2017. A 2018 review of carding legislation led by Ontario Court of Appeal Justice Michael Tulloch recommended even clearer restrictions on the powers of police to collect personal information, including the outright prohibition of asking for information for arbitrary reasons.Footnote ⁵⁹ The Supreme Court of Canada recently referenced this report, among others, when it recognized systemic racism in policing.Footnote ⁶⁰

What we are left with is the fact that the scale of disclosure cannot be justified by reference to law or, more precisely, shared jurisdiction over criminal law. Most of the time, disclosure is made in the absence of a legal obligation and, worse, contrary to the principles and purposes of enabling legislation – just as it is when schools, transportation ministries, and municipal transit corporations share data. How is it that police can get away with flagrant contraventions of the rule of law?

There are two answers relevant to this chapter. The first is that security trumps federalism in the field of jurisdiction. Defending cooperation with the CBSA, Chief Saunders claimed that the TPS, “as a member of the law enforcement and public security community, respects and supports the mandate of other law enforcement agencies, like the C.B.S.A.”Footnote ⁶¹ We can glean much from this statement, when we disaggregate the terms “law enforcement” and “public security.” After all, the TPS does not partner with park wardens, by-law officers, or Canada Revenue Agency officers with the same enthusiasm as it partners with the CBSA, yet all are law enforcement agencies. The real community is not law-enforcement officers but, as Chief Saunders states, the “public security community.” This community is defined by a shared role in the management of threats to state and citizen, where legal distinctions between criminal law/immigration law and criminal/migrant break down and jurisdiction can be extended beyond what is permitted within the four corners of provincial legislation.

This has distinctive importance in federal states because local police can draw authority from federal law and, more to the point, they can use federal authority to transgress the provincial laws that confer them with most of their power. The federal law they draw from includes substantive criminal law, which now includes entire sections of the Immigration and Refugee Protection Act as well as the range of regulations designed to tamp down on aspects of irregular migration that are defined as international and transnational crimes. Through these laws, local police partner with federal agencies in the investigation of human trafficking, people smuggling, terrorism, drug trafficking, cybercrime, and so on. They are also part of broader circuits of security, defined by the insatiable hunger for information and, in the past several decades, a risk-based obsession with “pre-crime.”Footnote ⁶² Proximity to data gives them purpose and power, an opportunity to aggrandize themselves – to secure more funding, influence, and prestige.

But in democracies, police are compelled to use legal arguments to justify themselves. Long on discretion and short on accountability, police easily dissemble their role in the extralegal facets of the carceral state, where inside/outside and local/national are blurred every bit as much, and for much the same reasons, as migrant/criminal. This raises the second point: We see the double sense in which sanctuary policies are “provincial” – not just because cities are creatures of provinces but also because the dynamics of political struggle unfold outside of jurisdictional remit of discrete bodies or levels of government. The police and other security professionals are now serious political actors in their own right and know they have “the ability to act as more or less autonomous agents.”Footnote ⁶³ Police are not accountable to representative government, which can at best influence policing through civilian oversight and review commissions. In 2015, Toronto City Council tried to assert influence through an independent civilian oversight body, the TPSB, asking it to investigate and then report back on the following issues: (1) statistics on the number of non-status persons reported to the CBSA, (2) agreements that exists between the TPS and the CBSA, (3) practical implementation of sanctuary policies, and (4) and the possibility of amending the PSA to regulate that police officers only report immigration status to the CBSA when directed by the courts after a conviction has been registered.Footnote ⁶⁴ These demands have been ignored, with the TPS steadfastly refusing to change its practices and reminding the TPSB and the City of Toronto that they lack jurisdiction to direct operational changes.Footnote ⁶⁵ One participant in our study stated:

For policing the issue is that we are bound to respond to statute violations related to the criminal code, any other federal statute, along with any other statute at the provincial level, we don’t have the luxury of being able to turn to a municipality and say, “okay we are going to adopt your philosophies and your principles,” because our practices are not dictated by the municipality, it is exclusively the realm of the province. The province decides what we will and will not do. As a result, the province has decided that we will enforce federal and provincial statutes.Footnote ⁶⁶

But provincial law actually constrains the local policing of migrants. The irony is unmistakable: police violate provincial law but use its shadow as a bulwark against subsequent democratic accountability, using one form of jurisdiction to prevent an accounting of the absence of another.

7 Conclusion

Reckoning with urban securitization offers an important inroad into the nature and limits of sanctuary cities in federal states. As the urban assumes a decisively municipal character in sanctuary scholarship, we become preoccupied with a constitutional order historically geared toward nation-building and against city-building. Through federalism, the city appears as epiphenomenal, utterly dependent on national and subnational governments for political and legal authority. While this is partly true, sanctuary cities are not reducible to municipalities nor is municipal authority reducible to formal constitutional law or enabling statutes. Cities play greater roles in a range of policy fields that intersect with and include migration, through patterns of shared jurisdiction that reflect a transformation of the nation-state and the emergence of other global and trans-local political communities. As Saskia Sassen has shown, these parallel processes occur precisely through the concepts and institutions of the nation-state, so it is no surprise to see federal governments carrying this process forward, even if they don’t fully appreciate what they’re doing.Footnote ⁶⁷ However, attempts to theorize the sanctuary city in this (possibly) emergent context of urban citizenship draw heavily on the cumbersome and ultimately unproductive language of dual sovereignty. While no doubt a reality that must be contended with, federalism doctrine produced by courts is so domineering as to obscure what critical federalism theory can offer with respect to the democratic potential of local communities in this transformative setting.

Shifting away from sovereignty toward (shared) jurisdiction reveals that local institutions can and do wield more authority than at first meets the eye. This chapter has been less concerned with exploring the empirical bases of this point in terms of sanctuary policies and networks, as with how the legal strength of the sanctuary city is affected by the parallel legal modalities of urban securitization. The Canadian experience shows that local police have also acquired considerable authority over the governance of migration through the shared jurisdiction produced by the criminalization of migration. The key commodity is data. Far from being inert, data “is generative of new forms of power relations and politics at different and interconnected scales.”Footnote ⁶⁸ By virtue of their access to data and the logics of risk management and predictive policing, local police are now key players in border enforcement. The spatial mobility of the border goes hand in hand with the legal mobility of police, who seem able to feely cross the boundaries set by federalism, rights, and the rule of law. It bears noting this process is also facilitated by the federal government, which remains confident it can share jurisdiction but retain sovereignty over the border.

This is all to say that federalism remains relevant, of course, but circling back to the legal strength of sanctuary cities, the question isn’t whether cities do or do not govern migration, but whether they can protect against the disclosure of locally generated information. This is a jurisdictional question that engages not only federalism but also transversal normative framings related to security, rights, the rule of law, common law, administrative law, and so on. The fact is that, through security, migration is already governed at the level of the city while the illusions of dual sovereignty leave sanctuary cities ill-equipped to implement their policies.

1 Introduction

“Sanctuary” policies – policies that seek to limit the participation of local law enforcement in the immigration enforcement project – have been enacted around the United States in four major waves: first, in the 1980s, responding to perceived injustice in the treatment of migrants from Central America. Second, in the late 1990s and more intensely after 9/11, bucking increased pressure on localities to participate in immigration enforcement. Third, from 2008 to 2014, in disapproving “Secure Communities” federal enforcement program. And, fourth, following the election of President Donald J. Trump, whose campaign explicitly targeted “sanctuary” jurisdictions and promised to dramatically increase immigration enforcement both at the border and in the interior of the United States.Footnote ¹

Even this brief recounting of the recent history of “sanctuary” shows that sanctuary policies can be viewed on an abstract level as the state and local responses to an increase or fear of increase in federal immigration enforcement policy. However, in the legal arena, mainly with respect to federal litigation in courts, lawyers, and judges have framed the question of sanctuary as one regarding our federalist system, one in which state and federal governments struggle over the power to regulate or protect noncitizens. This formalistic “authority” framing obscures the motivating values and policy reasons why states and localities want to prevent increases in immigration enforcement in their communities. On a more pragmatic level, the rationales used to justify sanctuary by local policy makers and advocates have widely varied, with motivations that range from a concern over inclusion and racial equity concerns, to a desire to reduce the harm caused by increased enforcement that separates families and the harm that comes from detention and deportation. The formalistic authority arguments brought in court ignores these important concerns and creates a stilted and artificial framework that invites misinterpretation and abuse, without ever allowing a vigorous and crucial discussion over questions of community.

Kevin Johnson and others have observed that in the United States, litigation over state involvement in immigration enforcement tends to submerge salient civil rights issues beneath dry, technical arguments about preemption and federal supremacy. One could add the Tenth Amendment anticommandeering doctrine, the state-law authority of county sheriffs, and the doctrine of separation of legislative and executive power (in particular when it comes to imposing conditions on federal funding streams) to the list of doctrinal arenas in which the importance of racial and civil justice is ignored in favor of formalistic authority doctrines.

Yet, the fourth wave of sanctuary – the movement following the election of Donald J. Trump to the Presidency, and continuing into the Biden presidency – brings a promise of a more relevant and coherent discussion of communal identity and values. This promise is further strengthened by the rhetoric of antidiscrimination and equality of advocates and politicians, which in turn is sharpened by the transparency of the Trump administration’s nativist and racist agenda. This promise, however, fades as long as litigation on sanctuary continues to be centered on the rarified air of legal doctrines that exclusively discuss authority and sovereignty. The very values motivating and undergirding the sanctuary movement, such as identity, equity, and harm reduction, will continue to remain hidden and unexplored if lawyers and judges continue to frame questions around sanctuary policies as one of authority rather than of community. Moreover, not only would the core questions of sanctuary remain hidden, but the use of formalism and authority legal doctrines would create a false equivalency allowing those who oppose sanctuary an abundance of tools to create policies of exclusion and harm. One example is the claimed equivalency of Texas’s SB4 (requiring local law enforcement to comply with immigration detainers) and California’s SB54 (forbidding such compliance).Footnote ² When questions center on which system of government – whether it be state, local, or federal can make immigration policies – the underlying and often motivating questions about sanctuary policies are lost.

This chapter sets out to explore how more normatively laden doctrines from constitutional law can be brought to bear on the legal issues pertaining to sanctuary. Even when structural legal doctrines are relevant, they nonetheless should be understood as situated in a larger framework permeated by the very values that sanctuary proponents seek to activate.

This chapter proceeds in four parts. Part I begins with a description of some of the recent “sanctuary” battles and the legal theories around which those battles have been framed, exposing the doctrinal framing as largely formalistic and devoid of the values that motivated the policies from the start. Part II lays out the difference between a structural or “authority and power” approach used in such litigation from a communal approach that centers on questions of identity, equity, and harm reduction. Part III provides possible reasons for the avoidance of discussing communal values that are the root of these policies and conflicts, and Part IV demonstrates why it is a problem. The chapter then concludes with a brief meditation on the broader implications of such an approach.

2 Power Struggles over “Sanctuary”

Many of the important legal contests over immigration policy generally in the United States have come, in the last decade or so, packaged as legal battles over authority. Many examples of this phenomenon have concerned interior, not border, enforcement. Mirroring this larger trend, litigation and debate over “sanctuary” or antisanctuary legislation or policies have arisen from varied sources. States and localities (most notoriously Arizona with its Senate Bill 1070) have claimed a role in the enforcement process, directing resources to apprehend suspected undocumented migrants, or hold suspected migrants for federal officials. Other localities who seek to create “sanctuary” have attempted to disentangle law enforcement from immigration enforcement and raised concerns over the practice of holding state and local prisoners beyond their release date pursuant to “detainers” issued by federal immigration officials.

In each of these instances, it will be seen, the axis of litigation was not policy itself or its goals or consequences but the authority to make policy. As a consequence, the legal doctrines deployed were focused entirely on structural or sovereignty concerns. The packaging of the litigation, to continue the metaphor begun in the preceding paragraph, obscured the contents of the package. This was in contrast to the political and public debate, which focused much less on authority or power, but on questions of racial equity and community harm.Footnote ³

3 Differentiating between an Authority and Power Framing from a Communal Values Framing

Kevin Johnson has asked, “[A]t their most fundamental level, how can racial profiling in [immigration] enforcement, massive detentions of noncitizens, and record levels of deportations not implicate civil rights concerns?”Footnote ²⁴ The answer to this rhetorical question, as we have seen, is that at every turn, civil rights concerns about how authority is exercised have been subordinated to formal doctrines pertaining to who may exercise authority.

The doctrines that have been deployed by litigants and courts in these sanctuary battles avoid discussion of the values motivating communities to put into place the sanctuary policies in the first place. The absence of discussion of communal values is made visible most dramatically when political actors shift in their allegiance to the formalistic power doctrine depending on the issue at stake. And nowhere has this been more obvious than in the shifting allegiances regarding whether authority should be centralized (and supported by doctrines like preemption) or localized (and supported by doctrines like anticommandeering under the Tenth Amendment).Footnote ²⁵

Former Attorney General Sessions, for example (like many Republicans), often threw his allegiance behind local control. For example, he has written that “[l]ocal control and local accountability are necessary for effective local policing. It is not the responsibility of the federal government to manage nonfederal law enforcement agencies.”Footnote ²⁶ Similarly, he has touted local authority when it comes to the subject of removing Confederate monuments.Footnote ²⁷ These positions, of course, reflect the classic Republican antifederal-government viewpoint. But when it comes to “sanctuary” policies, Sessions favors centralized federal authority, and characterizes local policymaking as “contrary to the rule of law.”Footnote ²⁸ As Richard Briffault has noted, a “particularly salient feature of the new preemption has been the reversal of the presumed association of liberals and Democrats with big government and conservatives and Republicans with local control.”Footnote ²⁹

Such shifting visions of authority were observed by Democratic member of Congress Zoe Lofgren at the outset of the hearings concerning the transformation of New Orleans from “Crescent City” to “Sanctuary City.” “It’s ironic,” Lofgren said, “that my republican colleagues today argue against local policies in favor of a top-down mandate from Washington.”Footnote ³⁰

The only obvious consistency was whether or not the form of government supported increased immigration enforcement – when the federal government was “failing” to increase immigration enforcement, then local and state powers would be elevated, but when the federal government increased its focus on immigration enforcement, such as during President Trump’s administration, local and state authorities must be diminished. The use of structural arguments merely as tools to forward a specific policy agenda only fuels cynicism and debases questions of sovereignty itself. When the question of sanctuary is reduced to a question of authority and power, there is little surprise that the debate then turns on whether a specific policy serves a political agenda, rather than on a doctrinal basis. For instance, during the Obama administration, those who favored more immigration enforcement viewed Arizona’s policies as necessary in the wake of a federal government that failed to enforce immigration law, while during the Trump administration, any attempts by localities to prevent such enforcement were viewed as interference of a federal policy on immigration enforcement.

Additionally, the formalistic nature of the authority doctrine can be seen by examining the rules around the federalist doctrines. With respect to Tenth Amendment anticommandeering doctrine, for example, the simple rules of the doctrine are: (1) the federal government cannot “command the States’ officers … to administer or enforce a federal regulatory program”Footnote ³¹ and (2) the federal government cannot “dictate[] what a state legislature may and may not do.”Footnote ³² These rules apply without regard to the content of the federal command or dictation. Similarly, the separation of powers principle upon which much of the sanctuary defunding litigation was decided states simply that the Spending Clause power resides in Congress and not the executive branch, and must be exercised by the former and not the latter.Footnote ³³ Again, this rule applies regardless of content. This doctrinal arena allowed judges and lawyers to avoid discussing or making judgments over policies and questions about the impacts and harms attendant to these policies.

Another way of observing the quality of the formalistic power doctrine is that the goal or resolution of the controversy is difficult to measure. With respect to the sanctuary defunding issues, if Congress could be persuaded to pass legislation embodying the administration’s antisanctuary funding conditions, the separation of powers doctrine would no longer apply. With respect to immigration detainers, if the federal administration could persuade (rather than command) localities to comply, the Tenth Amendment doctrine would then fall away.Footnote ³⁴ However, if the discussion centered on the communal goals, such as the harm inflicted on these communities by these policies, a measurable impact can be discerned – the promotion of sanctuary policies would lead to less racial bias in local law enforcement and less harm inflicted on communities. Alternatively, for those favoring increased immigration enforcement, the underlying harms such as generalized crime reduction or increase in wages could also be fairly measured.

Some of the formalistic power-based doctrines upon which sanctuary contests have been decided may and have discussed community values that animate the policies. For example, the question of state and local arrest authority that has been at issue in the most recent rounds of immigration detainer litigationFootnote ³⁵ may include a discussion of the harms imposed by such policies. State laws regulating arrest authority may in fact be brokered by vibrant substantive debate, which involve a discussion of communal concerns over safety and inclusion.Footnote ³⁶ Nonetheless, while formalistic power and federalist concerns can involve values and concerns that motivate the community, the courts and legal decisions (rather than the political ones) rarely touch upon or invoke them as part of the discussion. They are framed as collateral justifications rather than centralized as legal doctrines. Concerns such as displacing family units or encouraging racial bias become the background rather than animating the legal arguments involved.

4 Why Have Formalistic Empty Doctrines Carried the Day?

There are several possible explanations for the phenomenon just observed, the ubiquitous use of structural and formalistic doctrine in legal contests over sanctuary, rather than engaging with the animating concerns of the community.

The debate over authority in the immigration arena may be caused by a conspicuous vacuum of authority at the federal level. Even when a single political body controls both the Senate and the House of Representatives, along with the White House, little to no legislative action has been passed to reform an immigration system that is universally seen as broken. When President Biden entered office, he quickly proposed several legislative reforms to the immigration system; then when Republican support never materialized, he and the legislative leaders folded into his larger budget bill. Unfortunately, when the Senate Parliamentarian opined that the Democrats proposals for immigration reform should not be included in a budget bill (that would be immune from a Senate filibuster) legislative fixes for the immigration system has again seemingly faded at the time of writing this chapter.Footnote ³⁷ As with many major divisive policy issues of a national character, which includes gun control, and climate change, Congress has been stymied from acting. This has left little room for policymaking other than executive action by the President. Unfortunately, there is little room for open debate and public input into executive decisions.

The lack of legislative movement by Congress has invited states and localities to begin to try and fill in the gaps.Footnote ³⁸ With executive policies that lack public inputs, coupled with an increasing politicization of immigration, a motivated and engaged public has no choice but to push questions of local and state control over immigration. As state and local politics fill the vacuum left by the paralysis of Congress, questions over authority and structural formalism abound. While an important component, this is an incomplete picture, as questions over local and state control of immigration have existed since the founding of the nation.

The debate over sanctuary policies has been dominated by a narrative framing thirty years in the making – the narrative of immigrant criminality.Footnote ³⁹ This narrative is “sticky” – it continues to persuade even in the face of empirical evidence to the contrary.Footnote ⁴⁰ The power of the narrative lies in its exploitation of cognitive biases.Footnote ⁴¹ And perhaps, the existence of this powerful narrative shaped the strategies available to advocates.

As immigrants became associated more with criminality, so did the immigration system become more associated with law enforcement systems. While some of these battles had been fought since the beginning of the nineteenth century, their relative salience grew in the 1980s and 1990s as the Drug War and Tough on Crime policies took root and consequently viewed the border as a gateway for drugs and crime. Even as some immigration advocates attempted to divorce themselves from the label of criminality,Footnote ⁴² a broad consensus by political actors and the public existed that immigration rule violators should be treated under a criminal justice paradigm.

In the case of immigration detainers, for example, the narrative of immigrant criminality supported the notion that local law enforcement, whose daily business was controlling crime, should take an active role in immigration enforcement. This premise was so powerfully internalized that local sheriffs unquestioningly complied with immigration detainers for years before the Galarza litigation exposed the notion that sheriffs were not required to do so. This factor mirrors the difficulty and slow pace of criminal justice reform in the country. Just as substantive criminal enforcement questions have been avoided by courts, leading to substantial frustration by local communities,Footnote ⁴³ it may be much easier to convince courts that there were structural issues of enforcement by localities rather than trying to fight against the paradigm of criminality overall. The Tenth Amendment provided advocates with a tool to avoid the paradigm of immigrant-as-criminal and litigate out of its long shadow.Footnote ⁴⁴ While this approach avoided the sticky narratives of immigrant criminality, it sidelined the value-laden controversy over the racial and historical basis for the criminality premise.

While one possible explanation for the choice of formalistic doctrines suggests a conscious attempt to avoid the more potent content supplied by the dominant antisanctuary narrative, another explanation is that those responsible for litigating sanctuary contests have had mixed motivations. In the sanctuary defunding contests, for example, localities fought to retain federal funding historically associated with policing practices not necessarily inconsistent with the dominant narrative.Footnote ⁴⁵ Government attorneys charged with litigating may have been unable, through their own positional bias, to advance some of the critiques available.Footnote ⁴⁶

Related to the idea that some “advocates” engaged in the sanctuary contests may have mixed motivations is the notion that those representing a “side” in such a contest may in fact lack the consensus necessary to shift the battle from the terrain of formalistic power and authority doctrine to a discussion involving harm reduction and equity. Advocates had to broker compromise and find allies, many of whom may have been more easily persuaded by structural and resource concerns than ones rooted in harm reduction and destigmatization. In Denver, for example, while advocates unveiled an ambitious “sanctuary” ordinance rooted in antidiscrimination and equality principles, the ordinance that ultimately passed reflected deep compromises brokered during the legislative process.Footnote ⁴⁷ The final version of the ordinance eschewed language that would invoke doctrines like equal protection, instead adhering to the tepid doctrines of sanctuary battles that had already been fought on normatively blanched fields.

Litigators must of course choose from the tools available to them, and the selections made in the contests over sanctuary may reflect nothing more than choices based upon the suitability of available doctrines rather than the advancement of possible narratives that would have better reflected communal values. The evolution of legal doctrines may have contributed to litigation that battled over structure and power in at least two ways.

First, doctrinal evolution may have resisted efforts to imbue doctrine with normative heft. Deborah Jones Merritt describes how this may have occurred with the Tenth Amendment. For much of the nation’s history, the Tenth Amendment – which reserves to the States and to the people those powers not delegated to the federal government in the Constitution –Footnote ⁴⁸ was regarded as a simple “truism” signifying nothing more than the notion of a limited central government of enumerated powers.Footnote ⁴⁹ But in its “revolutionary” 1976 decision in National League of Cities v. Usery,Footnote ⁵⁰ the Supreme Court “promised a dramatic reshaping of federal-state relations.”Footnote ⁵¹ This reshaping would bar the federal government from regulating “the States as States,” interfering with “essential ‘attributes of state sovereignty’,” and “obstructi[ng] ‘the States’ freedom to structure integral operations in areas of traditional governmental functions.”Footnote ⁵²

Within a decade, though, the Court overruled the decision, abandoning the balancing test and its promise of decision-making that addressed the consequences and harms arising from discrimination and unequal treatment and instead returned the doctrine to a neutered state only able to address obvious or blatant forms of discrimination.Footnote ⁵³

Second, doctrinal evolution may have drained previously existing normative content. Areas of law, such as equal protection, that we might initially think of as directly involving questions of communal identity and harm have increasingly grown more ineffectual and drained of its ability to reflect communal concerns. The introduction of a requirement requiring proof of animus,Footnote ⁵⁴ the refusal to examine more closely government actions,Footnote ⁵⁵ and the emphasis on formal equality rather than antisubordinationFootnote ⁵⁶ all contributed to the neutering of equal protection as a constitutional protection. By 1996, Reva Siegel declared that “[t]his body of constitutional law once served to dismantle status-enforcing state action, but, … the doctrines now serve to rationalize, rather than scrutinize, the new, facially neutral forms of status-enforcing state action they have helped bring into being.”Footnote ⁵⁷ In 2009, Kenji Yoshino announced “the end of equality doctrine as we have known it,”Footnote ⁵⁸ and in 2012, Ian Haney-López declared that “equal protection will not again advance racial justice until colorblindness and malicious intent are overthrown.”Footnote ⁵⁹

This inability of the equal protection doctrine as a legal and judicial tool to address real concerns over racial discrimination and its effects can be seen in stark relief following the murder of George Floyd. The doctrinal evolution of a Constitutional amendment tasked with making real the sacrifices and values fought over during the Civil War had been unable to prevent the most overt and violent examples of racial bias in the killing of black men by police.

While all of the foregoing may help account for the absence of normatively charged litigation around sanctuary, mystery still remains. This is particularly so in light of the alacrity with which other aspects of the administration’s immigration platform have been challenged through content-rich doctrinal theories. The Muslim ban, for example, was immediately challenged as having been “motivated by animus and a desire to discriminate on the basis of religion and/or national origin, nationality, or alienage.”Footnote ⁶⁰ More recently, advocates have successfully challenged the federal criminal statute on illegal re-entry as motivated by racial animus and disproportionately impacting communities of color.Footnote ⁶¹ Likewise, the decision to end President Obama’s Deferred Action for Childhood Arrivals program was attacked as violative of equal protection,Footnote ⁶² with advocates labeling the decision “a culmination of President’s Trump’s oft-stated commitments … to punish and disparage people with Mexican roots.”Footnote ⁶³ In light of such claims it is not clear that the foregoing represents a complete or convincing explanation for the terms on which sanctuary has been litigated.

5 The Problem with a Formalistic Power Doctrine

Why is the application of formalistic federalism a poor way to resolve sanctuary issues? The two most obviously concerning results of the subversion of doctrines that reflect communal concerns in favor of normatively blank ones are: First, that the legal debates in which we engage do not reflect community concerns, so in fact we never even discuss topics of great normative importance, and second, that the legal decisions these contests produce are also unmoored from the concerns of the communities that created the policies in the first place. There are less immediately obvious consequences that are nonetheless of great importance. Two that are discussed here are the contribution to a growing ahistoricism and the generation of false equivalencies.

6 Conclusion

Using the term “sanctuary” to describe local policies designed to impact immigration enforcement has been critiqued and rejected by a spectrum of commentators. For example, in creating a policy to stop honoring ICE detainers, political leaders seeking distance from the immigrant-as-criminal narrative, have labeled these policies as “Fourth Amendment” policies. Those who seek more immigration enforcement continue to wield the label of “sanctuary” as a pejorative, attempting to associate the term with lawlessness.Footnote ¹⁰² The evolution of a term that by definition involves safety, peace, and freedom from persecution to one that invokes lawlessness and increased crime is partly made possible by narratives and legal doctrines used in court when examining immigration law generally. Litigation over immigration policy generally is dominated by authority and structural questions. As demonstrated in this chapter, this tendency holds true when questions over sanctuary policies arise.

Modern litigation over sanctuary has devolved into questions of authority and power. This devolution has resulted in sidelining why communities have adopted sanctuary policies in the first place. Questions of authority and power manifest in legal arguments over whether and how federal supremacy over immigration clash with state sovereignty issues embodied in the Tenth Amendment or other structural concerns in the Constitution, such as separation of powers. These structural framings again avoid the term “sanctuary” in favor of questions of authority and the clash of governments. But sanctuary, or the desire to keep people safe from harm has always been a consistent and unavoidable reason that these policies exist in the first place. Advocates for sanctuary may have a myriad of motivations, but principally they want to avoid racial bias and discriminatory treatment of their community members and they want to protect their community members from the harms that are inflicted by immigration detention and deportation. By contrast, as this chapter sets forth, litigants and courts have largely set aside such concerns and instead focused on legal doctrines that are largely out-of-reach of the public, perpetuating the myth that immigration policy generally need not be held accountable to constitutional mandates on racial equity or balancing government interests against the civil liberties of individuals.Footnote ¹⁰³

By framing the issues around the question of authority and not over the underlying question over whether such policies are either necessary to protect the community from racialized policing or whether the harms of enforcement policies themselves can be justified by government interests, there is an inherent acceptance that those concerns are not subject to litigation at all. The absence of legal discourse over whether these policies are in fact racialized furthers the notion that the racial impact of those policies are irrelevant to their constitutionality. Similarly, if there is no discussion over the harms of increased enforcement, which includes family separation, public health concerns, and detention and deportation, then it creates an assumption that such government actions are immune from constitutional scrutiny.

Not every litigation challenge or defense to sanctuary needs to reflect concerns over community values. But immigration policy itself is an offshoot of community concerns, it helps shape the United States as a community, and its implementations are almost always justified as a means to either preserve the identity of the nation as a whole or as a way to protect it from harm. The lack of discussion and debate over these concerns involving sanctuary policies, whether by cities, counties, or states, creates a vacuum of public understanding. If the Government need not justify or establish what harms that an immigration policy is purported to address, then immigration policy becomes increasingly more undemocratic.

This is not to say that litigation should be viewed as a means to make policy. Most sanctuary policies and its corollary antisanctuary or “local immigration enforcement” policies have gone through a political process prior to litigation. At times the political process may involve a local or state-wide legislative process, or it may also involve political leaders issuing changes in policies or programs. Litigation however does play an important role in making sure such policies conform to constitutional and legal requirements. Modern litigation around sanctuary has focused only on the mandates relating to structure and sovereignty. What has been missing in sanctuary litigation has been the constitutional and legal mandates intended to protect against bias and undue harm imposed by the government. Legal principles of equitable treatment and the balancing of harms by government policies are especially needed given how sanctuary and immigration policies can involve important counter-majoritarian principles. Sanctuary policies seek to protect residents, especially those who are not able to fully participate politically. Moreover, the communities that are seeking to create these policies are often smaller political entities subsumed under larger ones – cities versus counties, counties versus states, and of course states versus the federal government. Litigation narratives that reflect the desire to provide safety and equitable treatment are important, not just for those who face immigration enforcement but also the larger public to understand how immigration enforcement policies impact our local communities.

In his important work The Production of Space, Henri Lefebvre articulates a wide-ranging and persuasive argument for the social production of space. Space, for Lefebvre, is both a constitutive dimension of social relations, even as it is constituted through such relations that are embodied in an array of institutions, practices, and ideologies. The modern world is composed of multiple social spaces and multiple scales that are inherently historical and processual. Diverging from notions that think of space in terms of nested, concentric circles, where “local” space is contained within and subsumed by “higher” level space, such as regional, national, and global, for Lefebvre “[s]ocial spaces interpenetrate one another and/or superimpose themselves upon one another.”Footnote ¹ Any given spatial scale is, in important ways, produced through the relations that characterize such interpenetrations and superimpositions and no spatial scale has an identity independent of such relations. While each scale and spatial arrangement has unique, historically variant qualities, each is, in a sense, simultaneously also multiscalar, intertwined with other spatial scales. Moreover, any given spatial scale is not a smooth and homogeneous formation, but “hypercomplex” and contradictory, shot through with unevenness.Footnote ² Thus, Lefebvre’s approach, as Manu Goswami writes, works “[a]gainst conceptions of space as a pregiven container, a physical-geographical location, a neutral backdrop of social relations, an ontological horizon, and a discursive effect.”Footnote ³ Instead, his work urges us to attend to the multiform modalities – including the institutions, practices, representations, and ideologies – through which social space is produced. However, spatial analysis, Mariana Valverde warns, can often adopt a static perspective, lacking, or certainly muting, a temporal dimension.Footnote ⁴ Unlike such static conceptions, Lefebvre’s approach is resolutely historical, concerned not only with multiple social spaces but also with the coexistence and coimbrication of multiple temporalities. In other words, Lefebvre’s insights invite us to temporalize social space and historicize scale-making projects.

Questions of scale and of social space are of increasing interest to scholars of migration, ranging from calls for multiscalar analysis to the “local turn” in understanding migration governance leading to greater attention to the urban as an important site of political activity and scale of analysis.Footnote ⁵ One trajectory of this work shows how certain scales – such as the local and the urban – while always important, have been neglected in migration studies; another trajectory shows how these scales are currently emerging as significant to migration governance and to understanding the everyday reality of migrant lives. Contributing to this conversation on scale in migration studies, in this chapter I attend to space–time formations by focusing on the scale-making capacity of law, both historically and in the present, by pursuing two interrelated explorations. First, I seek to historicize the very production and disappearance of certain scales. In particular, through an analysis of the legal regulation of colonial Indian migration in the nineteenth and early twentieth centuries, I show how, in the early twentieth century, an imperial sociolegal scale was gradually rendered unintelligible, even as a national sociolegal scale gained ascendance. Addressing legal debates that circulated between India, England, Canada, and South Africa – all part of the unwieldy, legally differentiated, and racially stratified British empire – I show how migration law and regulation in the early twentieth century were an important aspect of the wider, uneven, and fraught historical transformation from an imperial scale to a national scale, from empire-states to nation-states. To be sure, the varied national liberation movements were the primary agents of this transformation. However, these movements did not, by themselves, dictate the precise contours and “contents” of national space and national scale. To gain an appreciation for the specificities of any scale – for instance, the imperial, the national, or the urban – we must attend to the processes, practices, and institutional forms through which it is produced and constituted. I show how contingent historical events positioned migration law and governance as significant for the production of national scale and of national identity by analyzing two distinct processes of nationalization with respect to Indian migration to South Africa and to Canada.

The domain of migration law and governance, as well as the proximate and overlapping issue of citizenship, are increasingly vital aspects of simultaneously reproducing and redefining national space. Thus, whereas the first set of explorations I pursue outline how the national scale becomes significant with respect to migration in the early twentieth century, I next turn to an analysis of the reworking of national scale in our current moment. I share Neil Brenner’s view that no scale preexists the practices and institutional forms through which it is constituted. As such, Brenner suggests that explorations of scale and rescaling are best approached as explorations of processes, where scales are in constant in flux and are constantly being remade.Footnote ⁶ As one instance of such a reconstitution of the national scale, I examine the complex dynamics of the changing migration and citizenship regime in postcolonial India. Since the mid-1980s, the documentation and acquisition of citizenship in India have undergone several radical shifts, steadily moving away from a broad jus soli definition to a narrow jus sanguinis conception. While the central government maintains sole jurisdiction over the legal definition of citizenship – and thus the definitions of the “foreigner,” the “migrant,” and the “illegal migrant” – these changes have been markedly shaped by demands emanating from the northeastern state of Assam that has seen a large number of Bangladeshi migrants. I provide a sketch of these demands to analyze how subnational or regional forces are embedded in the processes through which national space and national scale are reproduced and transformed. Though the empirical situations I study here are separated by a century and more, both focus on the centrality of migration and citizenship law to the making and recalibration of (national) scale.

Such issues might seem some distance from theorizing local migration law and governance, the concern of this volume; however, they participate in the conversation assembled here in two ways: First, and most obviously, like other contributions to the volume, this chapter is concerned with describing and analyzing the interpenetration and transformation of scales. However, where several other chapters foreground the local scale – where “local authority,” “local government,” and “local administration” are “used synonymously to designate the lowest tier of government in any national legal setting”Footnote ⁷ – to consider the forms of local migration law and governance, including how they are shaped by and reshape national and supranational scales, the “local” in my examination is not the “lowest tier of government,” but either a sub-imperial polity within empire or the state/province within a national setting. Put otherwise, I mobilize a different understanding of the “local.” Second, in charting how the regulation of colonial migrations was articulated to the emergence of national space, national scale, and, indeed, national identity, I seek to complicate and enrich the usual critiques of methodological nationalism. In general, the critique, particularly with reference to scholarship on migration, outlines how the adoption of an unreflexive national framework obstructs our ability to apprehend practices and processes that transcend and exceed the boundaries of the nation-state.Footnote ⁸ Interrogating the national frame has led to an important body of scholarship described as transnationalism. However, the transnational approach does not adequately address the historical emergence of the national and the place of migration – especially colonial migration – in constituting national space and scale.Footnote ⁹ Likewise, a robust historical dimension is sometimes lacking in the more recent literature on the “local turn,” which also often forgoes its necessary imbrication with other scales. Thus, the kind of historicizing effort I undertake enables us to concretely grasp the social production of space, to clarify the scale-making capacity of the law, and to reflect on the perils and possibilities of emergent legal forms (such as changes in citizenship regimes).

1 Colonial Considerations of Rescaling: From Imperial Space to National Space

2 The Postcolonial Nationalizing Project in India: Producing Statelessness

The basic principles that structure Indian citizenship, outlined in Articles 5–11 of the Indian constitution, include a union-wide, pan-Indian notion of citizenship with Parliament as the body responsible for enacting laws on citizenship. Niraja Gopal Jayal notes that after independence in 1947, there were impassioned debates in the Constituent Assembly, tasked with drafting the Indian constitution, on how to define and delimit the category of citizenship.Footnote ⁶³ Ultimately, the Assembly decided to premise citizenship on a broad-based jus soli principle, to address the extraordinary circumstances of Partition that attended Indian independence and to explicitly reject the “racial” principle animating jus sanguinis conceptions that, in the Assembly’s view, had shaped citizenship in South Africa.Footnote ⁶⁴ Later, the Citizenship Act of 1955 incorporated a combination of jus soli and jus sanguinis conceptions of citizenship, as is the case in many jurisdictions around the world. The Citizenship Act of 1955 would remain largely unaltered till the mid-1980s. At that time, changes to it were forced due to vigorous contestations and agitations concerning migrants in the northeastern state of Assam, that borders Bangladesh (formerly, East Pakistan).

What is known as the “Assam Movement” emerged in full force in the late 1970s, when it became evident that recent migrants from neighboring Bangladesh were on the voter rolls in the state. Led by the All Assam Students’ Union (AASU) and the All Assam Gana Sangram Parishad (AAGSP), the Assam Movement was an anti-immigrant agitation with two main concerns: The first regarding the political implications of purported and real noncitizens on the voter rolls; the second regarding the cultural implications of the threat Bengali-speaking migrants were seen to pose to the vitality of Assamese language and culture. Religion was complexly interwoven into the culture- and language-based agitation that had a complicated support base, drawing from, among others, Assamese Hindus and Muslims and Indigenous tribal groups.Footnote ⁶⁵ In 1983, as state assembly elections were underway – ignoring a boycott issued by AASU and AAGSP on the grounds that the voter rolls were inaccurate and the election illegitimate – the state witnessed a brutal massacre of 4,000 (purported) Bengali/Bangladeshi immigrants and their descendants in several villages. The central government had believed that the anti-immigrant sentiment was restricted to urban centers; the horrific massacre showed that it also had strong support in rural areas, among the Indigenous peoples as well as the Assamese. In other words, the anti-immigrant sentiment was alive across communities and across both urban and rural scales.

Anupama Roy and Ujjwal Singh show that the Assam Movement relied on “the figure of the ‘migrant alien’ as disruptive of both the Assamese ethno-space and the national political space.”Footnote ⁶⁶ They argue that it triggered a process that sought to construct a subnational identity and a notion of nationality/citizenship that was both “distinct from and consistent, coexistent, and concurrent with an Indian nationality.”Footnote ⁶⁷ In this wider context, where the Movement sought both distinction and similarity, the central government made two legislative changes to address its demands: First, in 1983, to address the claim of the distinctiveness of the situation in Assam, it enacted the Illegal Migrants Determination by Tribunals Act that outlined a complex set of procedures to identify “illegal” migrants in the state of Assam. (As the Act was restricted to Assam, and as it was largely symbolic, not yielding a mass identification of “illegal” migrants as those in the Assam Movement had hoped, it was legally challenged and struck down as unconstitutional by the Supreme Court in 2005.)Footnote ⁶⁸ Second, the central government reached a settlement with the Assam Movement and, in 1986, it passed an amendment to the Indian Citizenship Act. The amendment stipulated that to qualify as a citizen by birth in India at least one parent of a child had to be an Indian citizen at the time of the birth. Though the motivation for this sea-change – from a jus soli to a jus sanguinis conception of citizenship – came from the specific conditions and the agitation in Assam, the act was effective nationally and spoke to the dimension of similarity and co-extensiveness of Indian citizenship. We see here, with exceptional clarity, the interweaving and reciprocal determination of scales, where agitations animated by subnational, relatively “local” concerns have wider, national reverberations and consequences.

These reverberations and consequences were – and are – not contained within a politicolegal sphere; rather, as with earlier events in South Africa and Canada, politicolegal and sociocultural spheres are mutually conditioned. Indeed, in the intervening years since the 1986 amendment, the figure of the “illegal migrant” has become an increasingly potent weapon for the Hindu nationalist agenda of the Bharatiya Janata Party (BJP) and allied right-wing organizations, that have sought to mobilize anti-immigrant sentiment more broadly – for instance, in seeking electoral gains in West Bengal (another state that shares a border with Bangladesh). The figure of the internal migrant and the (international) “illegal migrant” also found resonance in the west of the country, where it fed into the anti-immigrant project of the Shiv Sena (another right-wing party) in the western state of Maharashtra, particularly Mumbai.Footnote ⁶⁹ With the BJP and its allies often using the term “infiltrators” to refer to “illegal migrants,” especially if they are Muslim, the issue of migrant interlopers now has national resonance in a sociocultural register. Simultaneously, in legal terms, since 1986, the trend toward a jus sanguinis conception of Indian citizenship has intensified.Footnote ⁷⁰ Thus, in 2003, another amendment to the Citizenship Act further restricted eligibility by birth to only those with at least one parent who was an Indian citizen and the other not an “illegal migrant” at the time of the birth. In addition, the 2003 amendment stipulated that the government compile a National Register of Citizens (NRC), verifying the citizenship – or lack thereof – of every person in India. In Assam, to count as a citizen of India, people must provide documentation that they, or their ancestors, have been resident in India prior to March 25, 1971 (when, after a civil war, East Pakistan seceded from Pakistan and became Bangladesh).

For a good decade, the government took no steps to implement the NRC. It was finally initiated in Assam in 2014 (under the supervision of the Supreme Court), with plans to expand it pan-nationally soon thereafter. The results of the NRC exercise in Assam have produced disastrous consequences: The final NRC, released in August 2019, excludes 1.9 million people who have been deemed “illegal migrants” due to insufficient documentation.Footnote ⁷¹ However, insufficient documentation might not be an indication of a lack of legal status but, more so, an indication of socioeconomic marginalization, disproportionally affecting certain groups, such as those who are poor or illiterate, particularly Muslims and Dalits; or members of transgender communities, who have fled natal homes; or women who might have married young and have no access to the relevant documents. In addition, the converse is also true: Possessing documents is not the verification of a preexisting legal status but might be the result of what Kamal Sadiq calls “documentary citizenship,” whereby people are able, through various means, to assemble a dossier of documents that qualify them as citizens.Footnote ⁷²

The results of the NRC exercise have been met with disappointment and alarm by different factions for different reasons. Some, such as the AASU and its allies, object to the NRC on the grounds that it did not identify sufficient numbers of noncitizens;Footnote ⁷³ others, such as the right-wing, fascist, Hindu nationalist BJP, that currently holds an absolute majority in Parliament, are disappointed that a large number of those identified as noncitizens are (Bengali) Hindus;Footnote ⁷⁴ yet others, such as liberal and left forces and international organizations, like the UN Human Rights Council, are deeply concerned about the implications of rendering people as noncitizens/illegal migrants.Footnote ⁷⁵ For, while the NRC deems people noncitizens or “illegal migrants,” presumably from Bangladesh, such a determination is not equivalent to their being legally acknowledged as Bangladeshi citizens. As Talha Rahman observes, the finding – accurate or otherwise – that a person is not a citizen of India does not imply that India can accord the person a different citizenship.Footnote ⁷⁶ India has repeatedly assured Bangladesh that the NRC is an “internal” exercise; Bangladesh, for its part, has maintained that those deemed noncitizens in India are not Bangladeshi nationals. Those excluded from the NRC are thus rendered stateless and potentially confront lives in “perpetual detention,” with deportation not an option.Footnote ⁷⁷ (The term, “stateless” is, of course, a misnomer, since “statelessness” is willfully produced, precisely, by states and is a status oversaturated by the gaze of the state.) Meanwhile, detention centers are under construction in Assam and in other states.Footnote ⁷⁸

The already dire situation produced by identification procedures has been exacerbated further by yet another amendment, via the Citizenship Amendment Act (CAA), passed in December 2019. The Act outlines the criteria by which people of six non-Muslim faiths (Hindu, Sikh, Buddhist, Jain, Parsi/Zoroastrian, and Christian) from three neighboring countries of Pakistan, Bangladesh, and Afghanistan can be eligible for Indian citizenship. Specifically, those resident in India prior to December 31, 2014 can apply for citizenship on the grounds of religious persecution in these three neighboring, Muslim-majority countries. The Act is silent on other countries that neighbor India, such as Myanmar, Sri Lanka, or China. The CAA has been critiqued and opposed on several grounds – most vigorously by citizens’ protests, often led by women.Footnote ⁷⁹ However, different sets of protestors had very different rationales for their opposition to the Act. Some, particularly in the northeastern border states such as Assam, Mizoram, or Tripura, protested on the grounds that the Act opens the floodgates to refugees and threatens the cultural and linguistic balance in these states.Footnote ⁸⁰ Others, in sites such as Delhi, most famously Shaheen Bagh, protested on the grounds that by introducing religion as a basis for citizenship, the Act undermines the secular underpinnings of the Indian constitution and is, in fact, unconstitutional. Such objectors identify several flaws with the legislation.Footnote ⁸¹ For instance, that some religious minorities (e.g., the Muslim Ahmadiyya in Pakistan or the Hazara in Afghanistan) are also persecuted minorities in the three neighboring countries specified but are not offered protection in the Act; that religious persecution is alive and well in other neighboring countries (e.g., the Rohingya in Myanmar or Hindu Tamils in Sri Lanka) that are not included in the Act; that the 2014 “cut-off” date is arbitrary, mysteriously assuming no persecution beyond that date; that rather than advancing a piecemeal refugee policy, India might be better served with acceding to the Refugee Convention (to which it is not a signatory, often making refugees – ranging from Tibetans to Sri Lankan Tamils – vulnerable to the whims of the ruling dispensation).Footnote ⁸² But all manner of protests came to a halt with the “lockdown” imposed in March 2020, due to the COVID-19 pandemic. Under cover of the pandemic, when widespread public protest became impossible and momentum was lost, we have seen draconian criminal charges brought against protestors, particularly those voicing critiques on constitutional grounds.Footnote ⁸³

The Act has profound potential consequences for the everyday life of the Muslim population, including Muslim citizens, in India, since executing such legislation is, of course, dependent on bureaucratic measures. As such, the CAA must be understood in conjunction with the deeply flawed NRC exercise conducted in Assam that, as I noted earlier, potentially renders almost two million people stateless. When we place the CAA alongside this bureaucratic exercise, new causes for concern come to the fore. Bureaucratic discretion, harassment, and corruption have been widely documented in the NRC exercise.Footnote ⁸⁴ The perils for those identifying as – or bureaucratically identified as – Muslim are grave, since the CAA does not offer a path to citizenship for Muslim refugees.Footnote ⁸⁵ Though the CAA is one instance of what Nicholas de Genova calls “the legal production of illegality,”Footnote ⁸⁶ its implementation will largely depend on the bureaucratic production of il/legality. Thus, even those Muslims long-resident in and citizens of India, could be rendered stateless and “illegal” by bureaucratic fiat, working in conjunction with a religiously defined, majoritarian nationalism.

For, it is not only legal transformations that have narrowed the scope of citizenship and expanded the category of “illegal migrant” in India, as it has elsewhere. Equally, a discourse of “illegal migrants” has proliferated well beyond Assam and has become a part of the national political conversation in India in a sociocultural register at the spatio-temporal scale of the everyday. The figure of the “illegal migrant” – or “infiltrators,” to use the language of the Hindu Right – now serves multiple functions: It is raised as a bogey to instill fear; it helps to shore up Hindu majoritarianism; it can be deployed as a handy scapegoat to explain away all manner of depredations that people confront; and, lastly, the terminology of “infiltrators” does critical work in yoking migration to national security, positioning Muslims as terrorists, and thus “deserving” of expulsion. This discourse, that simultaneously draws on and contributes to a more global language and hysteria of “illegal migrants,” has perniciously seeped into the social fabric of the polity, well beyond legal definitions, to become a part of the new (or renewed) common sense.

In India, at the hands of what Arjun Appadurai describes as “predatory majoritarianism”Footnote ⁸⁷ the issue of a minority population within the nation is in the process of being converted into a problem of “illegal migrants,” the “imposter within,”Footnote ⁸⁸ who should be expelled, or at least detained. However, the rise of predatory majoritarianisms, generated by what Appadurai calls a “fear of small numbers” (i.e., of minorities), is not unique to the Indian context. While Appadurai identifies the Nazi expulsion and extermination of Jews and others and the more recent genocide in Rwanda as paradigmatic instances of predatory majoritarianism, the tendency toward deportation, expulsion, and detention as the appropriate response to the notion of “illegal migrants” is now more widespread and is daily gaining ground. With the criteria that define national membership/citizenship made more stringent, statelessness is exacerbated, globally, as are deportations, expulsions, and detentions. This new formation of the national scale is not content with merely policing and producing the putative border, as was the largely the case in the early twentieth century; forms of violent expulsion are now part and parcel of an acceptable, even necessary, response.

3 Conclusion

The overarching argument of this chapter is that scales shift, change, and can appear and disappear. Keeping in view Valverde’s caution that discussions of space and scale can often elide a temporal dimension, this chapter has sought to historicize scale- and space-making projects over the longue durée focusing on migration governance as a constituent part of scale-making processes. I have shown how, in the nineteenth century, state control of Indian indentured migration was driven by the anxieties of freedom, generated by British slavery abolition, and led to the regulation of certain migration streams in and across imperial space. In the early twentieth century, wider control of migration was driven by a hierarchical racialized logic and, while taking shape across an imperial scale, led to the harnessing of migration control at the national scale, on a par with such other, temporally scattered, national scale- and space-making projects such as national currencies or national armies (the latter effectively only emerging after World War II).Footnote ⁸⁹ By my account, racial thinking subtended the emergence of the national as a critical node in the regulation of migration in the early twentieth century. The aim of such practices of bordering was to prohibit the entry of negatively racialized migrants (while facilitating the entry of those positively racialized) and helped to delineate and constitute the geopolitical “external” contours, the “territorial outside” of the national, with decisions on the admission of people into state space often made at literal sea and ocean ports.

A century later, we are witnessing very different kinds of scale-making techniques where new procedures of identification join with new understandings of citizenship – including those that vitiate jus soli principles and strengthen jus sanguinis principles – to not only proliferate the border into everyday life but also to generate national states that are engaged in the forcible expulsion and detention of people. Scholars have shown how the border and practices of bordering can be discerned and have proliferated well beyond the twin imperatives of geopolitical/territorial and demographic closure.Footnote ⁹⁰ In fact, practices of bordering have now become especially intense within national-state space with new forms of governmentality, that resort to detentions, deportations, and expulsions – alongside the production of statelessness – increasingly common. A part of what Matthew Gibney calls the “deportation turn,”Footnote ⁹¹ such endeavors can be identified in various state spaces.

The recent legal and sociopolitical events in India that I have detailed above are, simultaneously, part of and help to consolidate this wider tendency. Embodied in such changes is an alarming rise of new forms of ethnonationalism. These new forms of ethnonationalism have largely forsaken the reservations evinced by the Indian Constituent Assembly in 1950, when it rejected the “racial principle” that animated a jus sanguinis basis for citizenship and opted, instead, to articulate a jus soli premise for Indian citizenship. Now, in India, as elsewhere, we see a reconfigured and renewed “racial principle” that, like South Africa in the early twentieth century, mobilizes a highly restrictive endogamy, or jus sanguinis principle, as the basis for membership in the sociopolitical community. While the numerical scale of the operation of ethnonationalism in sites such as India – with almost two million people potentially stateless – is daunting and cause for grave concern, the overarching tendencies toward ethnonationalism are more widely evident in our historical present. Two legal processes characterize these tendencies: First, the twentieth-century logic of exclusion (that subtends prohibiting migration) is now supplemented by a logic of expulsion and detention. Second, in order to expel and detain people, they must first be rendered “migrants” and, preferably, “illegal migrants.” This can require complex legal and bureaucratic strategies, like those presently taking shape in India. Such transformations in India are indicative of a recalibration of scales. Formed through a multitude of processes, ranging from law to sociocultural reconfigurations, we see an interpenetration and superimposition of subnational and national scales wherein each is reworked. Thus, as scholarship in migration studies engages with questions of scale, it will be important to keep in view the more general tendencies; the complex lineaments (e.g., colonial and postcolonial; legal and sociocultural) that constitute their specific iterations; and the reciprocal traffic between the two.