Throughout a period spanning over two decades in the 19th century, northern states rejected and refused to honor rendition requests under the Fugitive Slave Acts of 1793 and 1850. Today, we see a similar dynamic at play when states and localities decline to hold undocumented migrants for the federal government in some situations, essentially refusing to do a job the federal government either will not, or cannot do itself.

In his aptly titled paper Rendition Resistance, Christopher N. Lasch provides a historical overview of state resistance to federal rendition employing the Tenth Amendment, and also analyzes the “relationship of compulsion” between the states and the federal government surrounding the issue. Beginning with the founding era and moving through present day issues surrounding “Secure Communities,” Lasch provides clear examples of how states have resisted federal rendition, examines judicial review surrounding the issue, and reveals the holes in the “compulsion” argument, creating a comprehensive exploration of the subject.

Rendition is the process whereby one state returns a captured fugitive to another state, or into federal custody. Rendition generally relates to a criminal suspect. But prior to the Civil War, the process was also used to return fugitive slaves to their “owners.”

The U.S. Constitution lays the foundation for rendition in Article IV Section 2 Clause 2, known as the Extradition Clause.

“A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.”

History of Rendition Resistance by States

The Extradition Clause and the Fugitive Slave Acts were a source of a long and intense struggle between states over federal law in the early years of the Republic.

Lasch provides an illustrative example of this early conflict through a case involving Virginia and Pennsylvania in the late 1700’s, as the states visited the issue of refusal.

“On March 9, 1791, a group of Virginians under the command of Francis McGuire killed four Delaware Indians at Big Beaver Creek in Pennsylvania. The killings were in retaliation for alleged acts committed in late February by a band of Delaware Indians against Virginians. A group of aggrieved Indian chiefs composed a letter to President Washington, and in turn Washington’s Secretary of War suggested Governor Mifflin of Pennsylvania seek extradition from Virginia of McGuire and his men, to be tried for the murders in Pennsylvania. This was done, and Governor Randolph of Virginia immediately offered a reward to anyone who would turn the fugitives over to Pennsylvania.

Ten days later, after favorably observing the swift and certain response of Governor Randolf to the requisition of the Big Beaver, Abolition of Slavery asked Governor Mifflin to issue a requisition for a second group of Virginians. These men had been indicted for kidnapping after they abducted an African-American named John, claiming him to be a fugitive slave. Among those named in the indictments was Francis McGuire-one of the Big Beaver Creek murderers.”

Unlike the first request, the Virginia governor resisted.

“Governor Randolph refused the extradition request, citing various technical reasons explaining why the requisition was not in compliance with the requirements of the Extradition Clause of the Constitution, arguing mechanism and implicitly asserting that rendition was purely a matter of executive prerogative.”

Lasch moves forward, recounting how northern states enacted Personal Liberty laws, specifically highlighting the Prigg Case in which the Supreme Court held, “that even if Congress could legislate on the subject, it could not compel the performance of a duty by state officials.”

“The states took the view that they exercised at least concurrent legislative power. Both before and after the 1793 legislation, states passed anti-kidnapping and “personal liberty” laws designed to offer some minimum procedural protections, such as the right to present evidence and the right to testify, to alleged fugitive slaves. In 1820, Pennsylvania enacted legislation increasing the penalty for kidnapping and prohibiting state officials from enforcing the Fugitive Slave Act. This prompted some efforts in Congress to strengthen the Fugitive Slave Act, but no legislation was passed.”

The end of slavery brought the fugitive slave issue to an end, but the legacy of resistance to rendition carried on after the Civil War.

“The criminal justice system, which before Emancipation had no concern for slaves, now focused its eye on the freedman. Even vagrancy laws that made no reference to race were aimed at one target, ‘the vagrant contemplated was the plantation negro.’ Once an African-American was charged with a crime, he could essentially be enslaved…Inhumane treatment of prisoners in the south continued to be cause for flight, as evidenced by extradition battles fought by escapees from southern chain gangs seeking refuge in the north as recently as 1970. Abominable prison conditions remained a cause for denying southern extradition requests into the 1970s…Fear of lynching was a frequently cited, in cases spanning the postbellum century, as a reason why a northern governor or court should not grant extradition of a fugitive back to the south.”

For instance, when an Ohio governor approved rendition of a black man back to Kentucky, a judge from Cincinnati stepped in declaring, “not until you give your pledge as a Commonwealth that lynchings shall cease within your bounds will I honor your writs of extradition.” The judge asserted that the last time a person was sent back to Kentucky, the man was lynched within 24 hours. The Kentucky governor refused to give such a pledge, and the Judge discharged the man in question from custody.


The Uniform Criminal Extradition Act (UCEA) brought “reform” to the rendition process, relying on state agreements to exchange fugitives. By 1983, all states but two had adopted it. States also adopted an Interstate Compact know as the Interstate Agreement of Detainers (IAD). IAD set up the federal government as an intermediary in the transfer detainees. As Lasch points out, rendition essentially depends on state cooperation.

“Under Dennison and Prigg, the states’ relationships with one another regarding fugitives from justice ultimately depended on comity. The purpose of the IAD was to regularize the treatment of detainers by converting criminal rendition from a scheme governed by comity to one governed by compulsion.”

The relationship further evolved from state-to-state rendition to state-to-federal rendition under Puerto Rico v. Branstad, which established federal control of extradition. According to the Court, the previous decision under Dennison “stood in the way” of Puerto Rico of retrieving a man accused of killing two people who had fled to Iowa. Iowa refused to extradite him back to Puerto Rico. The Court unanimously held that federal courts do have the power to enforce extraditions based on the Extradition Clause, overruling Dennison, which had rendered federal courts powerless to order Governors to fulfill their obligations under clause.

But Lasch argues the ruling in Branstad was still narrow in scope.

“With regard to the Tenth Amendment, Branstad’s holding that the federal government can compel the states to perform their duties under the Extradition Clause is a break in a long historical chain. Branstad did not indicate, however, that the ability of the federal government to exercise compulsion over state officials would be widespread. Indeed, the holding of Branstad was narrowly confined to the Extradition Clause, where ‘the duty is directly imposed upon by the States by the Constitution itself.'”


Even with the federalization of rendition, the battle continues between states and the federal government when it comes to immigrants. In 2008, DHS started a program called Secure Communities that focused on the “deportation of immigrants who committed serious crimes.” The question is whether this was intended to serve as a federal government request or a direct command that states take on the burden of holding immigrants until the feds take them into custody. DHS requested states fill out Form I-247. “The form is a piece of paper purporting to command state or local officials to maintain in their custody of a person who otherwise would be released to freedom and to deliver that person to federal immigration officials.”

Confusion shadowed the detainer form, as Lasch points out.

“Following the resolution, United States Representative Zoe Lofgren wrote to DHS Secretary Janet Napolitano and United States Attorney General Eric Holder, asking for clarification on how localities could ‘opt out’ of the Secure Communities program. Counsel for Santa Clara County sought similar clarification, invoking Tenth Amendment concerns by asking whether the county was ‘required or merely requested’ to honor detainers, and whether the county would receive reimbursement for any expenses incurred.’ The response from the feds was that the state could opt out by providing notice to DHS and state identification bureau. After Santa Clara County submitted its notice to opt out they were firmly denied by DHS.”

Documents obtained through a FOIA request “revealed that ICE officials had long known that the program was not voluntary. Outraged, Representative Lofgren called for an investigation of DHS, charging the agency with ‘essentially lying to local government and to members of Congress.'”

As a result, counties like Santa Clara County California said it would refuse to honor the federal detainers unless the federal government paid the cost of detention and only if the detained person was convicted of a serious crime.

The Weaknesses of Federal Compulsion

Lasch concludes by highlighting holes in the Branstad argument that federal authority in rendition is supreme.

“The current immigration detainer regulation suffers from the same defect as the Fugitive Slave and Extradition Acts of 1793–each attempted to impose by federal law a duty of state officials. The inability of the federal government to compel performance of that duty leaves it unenforceable;”

In other words, the feds still can’t force the state to continue holding immigrant detainees.

He continues, saying Justice Marshall’s decision in the Branstad case was limited and that, “there is no Fugitive Slave Clause or Extradition Clause explicitly imposing duties on state officers to comply with immigration rendition, and thus the Tenth Amendment anti-commandeering concerns persist.”

Lasch also contends Branstad‘s holding cannot be expanded to cover immigration rendition.

Finally, Lasch points out that a New York Court held that Branstad was limited to the proposition that “only that federal law is enforceable in state courts and that federal courts may in proper circumstances order state officials to comply with federal law, propositions that by no means imply an authority on the part of Congress to mandate state regulation. And when the federal government argued in Printz that the Extradition Act of 1793 was an instance of Congress imposing duties on state executive officials, the Printz majority pointed out that this was direct implementation of the Extradition Clause. Thus, Branstad has not been held to support broad power of compulsion in the federal government.”

In the final analysis, Lasch concludes that federal supremacy over rendition is limited.

“The Branstad’s reversal of Dennison should be understood not as a simple expression of federal dominance, but rather as a more nuanced expression of federal dominance in a particular context–a united States after the Civil Rights Movement and the Warren Court’s criminal procedure revolution. The decision must be read in light of those historical developments.”

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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