Responsibility Sharing at Home is Already Happening — Let’s Make it Just.
From the New Yorker: https://www.newyorker.com/news/as-told-to/the-artist-jr-lifts-a-mexican-child-over-the-border-wall
From the summer of 2022 through mid-September, Texas Governor Greg Abbott and Florida Governor Ron DeSantis used state funds to transport recently arrived migrants to large, democratically governed cities like New York, Chicago, and D.C. This strategy culminated in Governor DeSantis’s duplicitous promise to fly recent migrants to Boston for free while actually stranding them on Martha’s Vineyard (where former president Barack Obama happens to own a home) without notifying local residents or authorities.
State governors that use migrants as pawns in ideological disputes are deeply unethical, inhumane, and poor imitators of authoritarian leaders who have used similar tactics in recent years. The methods used by these governors, however, have reframed the national debate around immigration in ways that Abbott and DeSantis may not have intended. While these two politicians aim to overrun historically liberal cities, sour blue state resident’s perceptions of immigrants, and gain approval among their own constituents, their actions have actually highlighted the possibility of national responsibility sharing. Texas’ and Florida’s actions — and northern states’ responses to them — suggest that asylum seekers might willingly go to states in the American north and west if the government facilitates low-cost travel, protection from deportation, and autonomy.
Good or Bad, We All have to Reckon With Responsibility Sharing
The concept of “responsibility sharing” refers to the idea that the entire world should share in the resettlement of refugees either by distributing resettlement obligations according to state capacity or adequately paying countries who already host a majority of migrants. While the world has increased its capacity and dedication to hosting migrants further from their countries of origins, responsibility sharing policies are the subject of serious debate. The concept has been challenged by scholars who argue that responsibility sharing obscures the idea that the global north’s history of colonization and military adventurism gives communities in the global south an inherent right to to settle in the nations of their former colonizers. Others have characterized responsibility sharing as a “second-best solution,” and argue that the concept frames migrants seeking protection from harm as burdens, commodities, or costs to be shared, owing to responsibility sharing sometimes being referred to as “burden-sharing.” Lastly, responsibility sharing plans are criticized because they have frequently failed. Past attempts at responsibility sharing arrangements, such as the Trump Administration’s U.S.-Guatemala Asylum Cooperative Agreement, have been unsuccessful in resettling the growing number of migrants who want to live in Europe and the United States or financially supporting the countries hosting the largest number of migrants.
And yet, as responsibility sharing moves from the margins of international legal theory to an evolving series of policies continually implemented by the United Nations, the United States, and the European Union, progressive advocates have an opportunity to improve the world’s response to displacement and resettlement. Eight years after Europe’s 2015 “refugee crisis,” Europe and the United Nations continue to aspire to global responsibility sharing. Though the Global Compact on Refugees has offered more hope than past attempts by expanding hosting responsibility to forcibly displaced people and environmental migrants, it still falls short of what is needed due to participating States’ failures to host the number of migrants they pledged to accept. Still, the Global Compact is a sign of international momentum towards justice for migrants. If migration is reconceptualized as decolonization or reparations, the world will be able to shape a robust and open system of responsibility sharing. In light of our failures, the histories and realities of our interconnected world demand that we provide better answers to how we share in the duty to care for those fleeing harm.
The United States has a Duty to Engage in Better Responsibility Sharing for Asylum Seekers
International, regional, and domestic legal commitments and moral principles color the United State’s commitment to resettle refugees. Asylum seekers who seek asylum at the U.S. border or after entering the country must meet the international refugee definition, as enshrined in U.S. law. The United State’s good-faith commitment to recognize refugees under the 1951 Refugee Convention, along with the asylum and refugee provisions of the Immigration and Nationality Act, create a legal duty to hear petitions for asylum. While the federal government coordinates its federal refugee resettlement program with the states, there is no centralized mechanism to balance asylum petitions and asylum adjudications among the states.
The number of pending asylum cases in each state is deeply uneven, with just three states, California, Florida, and New York, accounting for 45% of all pending asylum cases, and just two states, California and New York, accounting for 48% of asylum cases decided on their merits. Our current asylum system shows little regard for municipal capacity and does not facilitate asylum seekers’ ability to travel to jurisdictions where they are most likely to flourish.
The Global Compact on Refugees recognizes the principle that local entities, like states and cities, are often the first responders when asylum seekers need to be hosted or when refugees need to be resettled. Professor Seth Davis has recognized that the same international obligations to host refugees and asylum seekers also demand the creation of responsibility sharing mechanisms within countries. The disproportionate distribution of migrants across the United States, and the associated responsibilities to adjudicate asylum claims and provide government and social services suggests that better responsibility sharing is warranted. The fact that xenophobic politics have already fueled inhumane approaches to responsibility sharing increases the urgency of conscientiously integrating responsibility sharing into our broken asylum system.
Another Arrangement is Possible: Fixing Responsibility Sharing Within the United States
Greg Abbott and Ron DeSantis have already begun an ad hoc process of internal responsibility sharing that is grounded in xenophobia instead of humanitarianism. Professor Jaya Ramji-Nogales, however, points to the ironic messages of the renegade governors of Florida and Texas who, instead of demonstrating that the United States cannot feasibly settle and accept more asylum seekers, have confirmed that the opposite is true. The transportation provided by Texas and Florida and the mobilization of liberal city governments to accept — -and even freely house — bussed migrants exhibits new and innovative ways to share responsibility for receiving asylum seekers — and even improve upon existing reception. These actions have inspired scholar-advocates, like Ramji-Nogales, to call for innovative and unprecedented new transit options, such as visas enabling asylum seekers and migrants to safely and affordably fly directly from their home country to the city and asylum office of their choosing, rather than traveling through border states where, as Abbott and DeSantis allege, they are a burden. Protections such as guaranteed access to temporary housing could expand migrant autonomy by allowing people to travel to communities of their choosing, instead of having to rely on pre-existing networks that might drive migration to just a handful of destinations. These policies would also contribute to alleviating the pressure purportedly overburdened states like Texas and Florida claim to experience, where such a narrative contributes to xenophobia.
The United States should use the best aspects of other responsibility sharing schemes to shape its own domestic policy. Unrealized E.U. plans, such as Dublin IV, aimed to share responsibility across E.U. member-states based on GDP and population size. The plan included a financial penalty for states who opted out of resettlement, which would then be used to support other countries’ efforts. While international responsibility sharing schemes have sometimes failed or been left untried, intra-national responsibility sharing in the United States has more promise: The United States can use its strong central government to compel states and localities into compliance and coordinate more effectively than looser configurations of sovereign states, such as the European Union.
Governors Abbott and DeSantis have expanded our political imagination and revealed the United State’s capacity to host more asylum seekers across state lines. We now have an opportunity to meet these governors’ hateful stunts with progressive policy solutions that will allow the United States to process and settle far more asylum seekers than it has in recent decades. To do this, our response must cultivate a politics of possibility, pragmatism, and human dignity.
About the Author: Jacob Cantor is a 2L at Boston University School of Law. Jacob is from the northeast and will practice civil legal aid and movement law in Chicago after graduating.