Deportation to Unknown Lands Is Not Law but Force

I read that, in recent months, thousands of persons have been taken by public officers, some bussed to Mexico, others placed on flights to countries in Africa, Latin America, the Caribbean, and central Asia to which they have no connection, and that many of these are then returned to the very countries where immigration judges had ruled their lives or liberty were at risk. A ruling has for the moment halted these third‑country deportations, and the administration has urgently appealed to the supreme court to restore them. I do not know the secret bargains or the full detail, but I know enough to say this much plainly: this is no ordinary dispute about policy; it is a contest about the very ends of political power.

When I first sought, in the Second Treatise of Government, to understand political power right, I began not with parliaments or courts, but with men considered in a state of nature, where every person is naturally free, equal, and independent, subject only to the law of nature, which is reason. In that state, every one has a right to preserve his life, liberty, and possessions, and no one ought to harm another in these. Government is therefore not the natural condition, but a remedy; it is erected by consent to make our lives more secure than they would be if each man defended himself by his own strength and prudence.

From this it follows that the burden of proof always lies on power, never on liberty. The magistrate must show that the authority he claims is such as free and equal persons could reasonably have entrusted to him for their preservation. Power is a fiduciary thing, held on trust, not a private estate to be used at pleasure. When rulers use the public sword, they must be able to say: this protects the community, including the stranger within its gates; this keeps every man’s property, in the wide sense of his life, liberty, and estate, more secure than it would be without us. If they cannot say this, or will not, their acts are not exercises of authority but instances of force.

Consider then what is here reported. More than 5,000 people have been carried by the state to countries where they have no connection. Some have then been returned to places from which they had fled, and where judges, acting under the laws of this country, had already determined that their lives or liberty were at risk. To seize a person who has sought the protection of your laws, to disregard the judgment of your own tribunals, and to cast him into the arms of those from whom he fled, is not the preservation but the deliberate endangering of life and liberty. It is as if a man hired a guard to keep robbers from his door, and the guard opened the door to them instead.

I do not say that a people are bound to receive every stranger without condition. Societies may set rules for entry, provided those rules conform to the law of nature, which forbids us to destroy the innocent or to deliver them knowingly to destruction. But here the troubling marks multiply. First, persons are sent not merely out of the territory, but to lands with which they have no civil relation, by secret bargains to which they never consented. Secondly, they are removed contrary to the findings of an existing legal process, so that the standing rule and the impartial judge are both set aside. Thirdly, the whole is done under a cloud of discretion, with little public reasoning offered beyond the convenience of the state itself.

When, as I wrote in the Second Treatise, legislators or those who execute the laws lay claim to a power to destroy the people’s property, or to reduce them under arbitrary power, they thereby put themselves into a state of war with the people. I do not mean that every misjudgment or harsh application of law dissolves government; men are fallible, and even just rulers will sometimes err. But a long train of abuses tending all the same way, to place the lives and liberties of some wholly at the mercy of executive will, is another matter. To insist that such deportations must continue, even when courts have halted them, is to seek not lawful authority but an entrenched prerogative.

Prerogative, I have admitted, is sometimes necessary: a power in the executive to act for the public good without a precise rule, and even contrary to the letter of the law, where the law is silent or would, in the particular case, defeat its own end. Yet prerogative is tolerable only so long as it is plainly ordered to preservation and remains revocable by the people’s representatives. When it is used to override existing legal protections, when it treats judicial findings of mortal danger as inconveniences to be escaped by sending men to third countries, when it then seeks the sanction of the highest court to make this discretionary power secure against challenge, it comes near to that absolute, arbitrary power which is worse than the state of nature itself. A free people should recognize the difference.

What, then, follows? Though the facts reported are not complete, they suffice to show a pattern: human beings treated as burdens to be shifted from place to place, with scant regard to their natural rights, and with the standing law bent or brushed aside to make way. Resistance, in such a case, need not mean tumult; it begins in the courts, in the legislature, in every lawful means by which the people recall their governors to the trust on which their power depends. If that trust is answered with further attempts to make discretion absolute, the argument has reached the point where, beyond the forms of law, there remains only the appeal to heaven.