Did DeSantis and Abbott Break Law with Migrant 'Stunt'? Experts Weigh In

Florida governor Ron DeSantis was strongly criticized this week after claiming responsibility for ordering two planeloads of migrants to travel from Texas to Martha's Vineyard.

Aboard the planes there were some 50 migrants, including children, mostly from Venezuela.

DeSantis said the plane were part of his program to send "illegal migrants" to progressive states, in protest of Biden administration's liberal immigration policies.

Ron DeSantis in Pittsburgh
Florida Gov. Ron DeSantis speaks at the Unite and Win Rally in support of Pennsylvania Republican gubernatorial candidate Doug Mastriano at the Wyndham Hotel on August 19, 2022 in Pittsburgh, Pennsylvania, urging Republican voters to stand behind Mastriano. DeSantis has fueled a backlash from the Democrats in September after he spent $615,000 of state funds to fly nearly 50 migrants to Martha's Vineyard under a controversial relocation program. Jeff Swensen/Getty Images

The tactic has been practiced elsewhere by Texas Governor Greg Abbott and Arizona Governor Doug Ducey since April and May.

California Governor Gavin Newsom has said that DeSantis should be investigated for possible kidnapping and racketeering charges for the move, calling on the Department of Justice to act.

Many left wing commentators on Twitter have also suggested that the Abbott's and DeSantis' actions are prosecutable, suggesting the pair are guilty of human trafficking, while allies cheered the move.

"Two Republican governors are engaged in human smuggling. That's a serious federal crime," tweeted Jon Cooper, a former political operative.

"With DeSantis unlawfully sending immigrants to Martha's Vineyard and Trump's Judge allowing a Special Master to view stolen Classified Documents, we're getting a taste of what Autocracy is like. If we don't hold onto Congress, we'll get a lot more than a taste. VOTE!" tweeted film director Rob Reiner.

Human Trafficking Concerns

Despite accusations of a carrying out a "cruel stunt" and dubious ethics around transporting people to make a political statement, such actions are much trickier to assess in terms of the law.

Newsweek Fact Check gathered together some legal opinions on the matter.

According to one prominent expert in immigration law, the chances of a human trafficking charge are very slim.

Stephen Yale-Loehr, a professor of Immigration Law Practice at Cornell Law School, told Newsweek the situation was unlikely to meet the grounds for a credible human trafficking case under either state or federal laws.

"Each law varies, but many laws define human trafficking as recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

"As such, I think it is an exaggeration to claim that governors in Republican states are engaging in human trafficking by sending migrants to other states. In most cases that I have heard about, migrants have been happy to accept bus or plane tickets, even if they don't know where they are going."

Professor Yale-Loehr argued that while federal law prohibiting illegal transportation of migrants presented theoretically steadier grounds for criminal prosecutions, the chances of even that sticking were vanishingly thin.

"That presents a closer case than the human trafficking argument. Still, illegal transportation prosecutions and convictions are very rare. They are mainly aimed at smuggling operations. Thus, I think it is unlikely that Republican governors would be prosecuted under this law.

"The bottom line is that it is an exaggeration to claim that Republican governors are violating human trafficking laws or violating laws that bar illegal transportation of migrants."

Other legal analysts have taken a similar view; American attorney Ken White, who comments on legal issues via his blog The Popehat, noted the number of people pointing to 8 U.S. Code § 1324 "Bringing in and harboring certain aliens" as grounds for prosecution.

The Code states individuals may face a fine or prison sentence for "knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law."

However, as The Popehat points out, a violation would only stand if prosecutors were able to show "it was done to promote their illegal entry into and presence in the United States."

"I guess prosecutors could argue that by moving people to sanctuary states, state officials are helping promote the people staying," they added.

"But I don't see any prosecutor charging it. Using people as props, regrettably, doesn't violate federal criminal law."

Federal vs State Laws

If human trafficking or illegal transportation charges are less likely then what about other areas of law?

Victor Romero, professor of law at Penn State Law and an expert on immigration policy, questioned whether DeSantis and Abbott had the power to transport migrants across the states.

"In my view, the issue is not whether what the states are doing here is criminal; rather, the key question is whether these states have the authority under federal law to transport these people clear across the United States," he told Newsweek.

"Typically, states that encounter migrants transfer them to federal custody, as the federal government has both long standing constitutional and statutory authority to enforce U.S. immigration law.

"Such authority has traditionally included the movement of migrants across states, from one federal facility to another for processing, say. As such, the states are treading upon traditional federal authority over migrants, and that is problematic."

Others have pointed further afield for potential violations. Ian M. Kysel, assistant clinical professor of Law at Cornell Law School and a Non-Resident Fellow of the Zolberg Institute on Migration and Mobility, suggested that DeSantis and Abbot's actions might breach international statutes.

"Abusive policies by States like Florida and Texas, seeking to score political points by tricking migrants or making it harder for those fleeing persecution to receive assistance or asylum, can put the US in breach of its international law obligations," Professor Kysel said.

Marthas Vineyard Migrants
Volunteers mingle outside of St. Andrews Episcopal Church on September 15, 2022 in Martha's Vineyard, Massachusetts. Two planes of migrants from Venezuela arrived suddenly Wednesday night on Martha's Vineyard. The migrants are being taken care of at the church for now. Jonathan Wiggs/The Boston Globe/Getty

"Just last month, the UN Committee on the Elimination of Racial Discrimination called on the US to do more to end racism and xenophobia affecting migrants.

"Stunts like this just fan the flames."

Transportation and the welfare of the people sent to Martha's Vineyard may not be the only avenues for legal investigation either, with commentators questioning the legality of funding behind the scheme and the paperwork associated with it.

As to the calls for human trafficking prosecutions, these may well have been provoked by the disgust some feel towards DeSantis' actions, which many see as exploiting people for his own political gains, rather than any solid legal arguments.

At least until more forensic analysis of the circumstances surrounding the situation is carried out, however, it doesn't seem that the Florida governor will face immediate legal challenge for the stunt.

Nonetheless, such a high-profile, sensitive and provocative story is unlikely to be concluded any time soon, with more locations already reportedly picked out by the Republicans.

Newsweek has contacted Ron DeSantis for comment.