In recent months, three governors – Greg Abbott of Texas, Ron DeSantis of Florida, and Doug Ducey of Arizona – have aggressively implemented policies to transport large numbers of migrants to other states, reportedly “to protest what they say are inadequate federal efforts on southern border security.” Governor Abbott’s office recently stated that Texas has bused more than 7,900 migrants to Washington, D.C. since April, more than 2,200 migrants to New York City since August 5, and more than 300 migrants to Chicago between August 31 and September 6. Arizona has sent 46 buses carrying 1,677 migrants to Washington, and Governor DeSantis – who has said for months that he would be relocating migrants to Delaware or Martha’s Vineyard – made good on that promise this week by sending two planeloads of migrants to Martha’s Vineyard.
While mayors of cities to which migrants have been shipped have decried the practice, and the Biden Administration is considering unspecified “litigation options” to halt it, the governors and their supporters so far appear unfazed, even emboldened, by the criticism and appear to enjoy what some critics call the political theater. One aspect of the busing-and-flying program, however, should give the governors pause.
According to New York City Mayor Eric Adams, some of the families that were bused to New York “were forced on the bus with the understanding that they were going to other locations that they wanted to go to, and when they tried to explain they were not allowed to do so.” Governor Abbott retorted that migrants were given voluntary consent waivers in multiple languages before boarding the buses. However, any evidence that migrants were forced onto buses or planes, or were induced to board by false promises (such as promises of being taken to other destinations or being able to get work papers) could raise a more serious issue for the governors: the possibility of federal kidnapping violations.
Title 18, Section 1201(a)(1) and (3), of the United States Code makes it a federal felony for anyone who, among other acts, “unlawfully seizes, confines, inveigles, decoys, [or] kidnaps” another person when that person “is willfully transported in interstate or foreign commerce” or “any such act against the person is done within the special aircraft jurisdiction of the United States.” That language makes clear that kidnaping can occur without gun-to-the-head type coercion. “Confin[ing]” migrants on a bus by force or threats of force, “inveigl[ing]” (in everyday language, “achiev[ing] control over someone in a dishonest but skillful way, especially so that they will do what you want”), or “decoy[ing]” (“trick[ing] or confus[ing] people into doing something or going somewhere”) is just as much an offense under section 1201 as seizing or kidnapping them. And under Title 18, Section 2 of the United States Code, anyone who causes or aides and abets another person to engage in kidnapping is equally guilty of that kidnapping.
If any state or local authorities are found to have forced migrants onto interstate transportation, or lied to them to get them to board, those authorities might think that they were not engaged in kidnapping because they did not have a pecuniary motive for their actions, or because they themselves did not transport or accompany the migrants across state lines. They would be wrong on both counts, under long-established Supreme Court decisions.
In a 1964 decision, United States v. Healy, the Supreme Court held that section 1201 is not limited to kidnapping for pecuniary gain. And in a 1999 decision, United States v. Rodriguez-Moreno, the Court held that federal kidnapping under section 1201 “is a unitary crime” that “once begun, does not end until the victim is free.” In other words, a person who compelled or lied to migrants but stayed behind after the bus leaves can be just as guilty of federal kidnapping as a human trafficker who grooms a vulnerable person into getting into a car but stays behind as another trafficker drives across a state line with the intended victim.
To be sure, the mere transportation of migrants to other states does not constitute kidnapping under section 1201. If state and city officials can establish that they gave complete and truthful information to each bus- or planeload of migrants about the circumstances of their shipment to other states, and that no coercion or force was used to get them on board, that busing or flying of migrants, however callous, is no crime.
But if there are credible reports of lying or coercion to get migrants on board buses or planes for interstate travel, the Federal Bureau of Investigation and the U.S. Department of Justice need to investigate those reports and take appropriate action. Both agencies have substantial expertise in investigating kidnapping of all types. For their part, the governors need to convey unambiguously to those conducting the migrant shipments that there must be no show or threat of force, and no false or deceptive statements, to get migrants on board. And if drivers or flight crews involved in transporting those migrants witness specific instances of such lying or coercion of migrants, their employers need to authorize them to refuse to transport those migrants. No transportation contract, no matter how lucrative, and no political advantage are worth becoming complicit in possible federal kidnapping violations.
Dipping Through Geometries 