Undocumented Prudent Immigrants: De-Centering Romans 13 and Rule of Law in Immigration Ethics

The Argument of Romans 13:1-7

Four features of Rom. 13:1-7 are particularly relevant for a discussion of immigration ethics. First, 13:1 contains a clear injunction to ‘be subject to governing authorities’ (13:1 NRSV) as authorities ‘established by God’ (13:2). Second, there is a punitive motive for doing good—those who are not subject ‘will receive condemnation’ (13:2)—but another deeper motive is ‘conscience’ (13:5). For the Christian, an emphasis on conscience surely pertains to God's will and purposes as the deepest basis for submitting to authorities. ¹⁸ Third, Paul describes government as an agent designed to praise those who do good and punish those who do evil (13:4). Fourth, authorities are ultimately ‘servants of God’ (13:6) who are ‘established by God’ (13:1). A cursory reading of the passage certainly gives the impression that any unauthorized entry into a country would be morally problematic, but closer attention to the text and the political and legal situation in the United States reveals a more complex situation.

Some have argued that 13:1-7 itself severely restricts the scope of its applicability, though I find most of the strongest claims implausible. For example, M. Daniel Carroll R. argues that ‘The text says, “Be subject” (or “submit”, ῾υπτασσω) to the established authorities (13:1). It does not say “obey”’. ¹⁹ Carroll indicates that this verb choice sets boundaries to our adherence to government pronunciations, but this is not convincing given that Christians are elsewhere commanded to be obedient to authorities (Titus 3:1). Others have suggested that the ‘powers’ in Romans 13 might be part of Paul's broader theology of spiritual powers, which ‘crucified the Lord of glory’ (1 Cor. 2:8) and are part of cosmic warfare between God and the forces of evil (Eph. 6:12). ²⁰ These powers have been defeated by the cross (Col. 2:13-15; Eph. 1:20-22). If such were true, then Romans 13 would be naming the government in a negative manner as opposed to God. However, this interpretation has not been widely accepted, ²¹ and Paul's subsequent discussion of paying taxes to these authorities in 13:6 suggests a clear earthly frame of reference, though too sharp of a distinction between the spiritual and earthly realms is also untenable. ²²

Though the most ambitious attempts to restrict Rom. 13:1-7 on the basis of its content fail, there are several implied features of Rom. 13:1-7 which suggest that Paul might allow for limits to obedience to government. Robert Stein explains one such implied limitation: ‘It should be noted that Paul is not speaking about a state which punishes good and rewards evil. As a result it is precarious to apply the positive statement of divine authorization found in Romans 13:1-7 to such a state!’ ²³ Similarly, Oscar Cullman suggests that 13:7's imperative to ‘pay to all what is due them’ implies a prohibition against giving the state what is not due to the state. ²⁴ Sylvia Keesmaat and Brian Walsh argue that Paul's emphasis on God's institution of government might draw on common apocalyptic themes, showing that though the empire seems in control, God truly is. If such were the case, Romans 13 therefore serves to qualify and subordinate the power of the state. ²⁵ These insights suggest that Christian subjection to the state may have limits.

So far, our analysis of Romans 13 provides some meager sense that there may be limits to the subjection owed to national law, including immigration law, but these limits remain vague. However, even at this early stage of analysis, it is clear that the teaching of Rom. 13:1-7 itself does not automatically mean that all undocumented immigrants are violating the letter of this passage, even setting aside more complex discussions of how to balance this passage among other relevant biblical teachings about the state. One group in particular comes to mind: trafficking victims. Though trafficking victims are only a small portion of the total population of undocumented immigrants in the United States ²⁶ —one study estimated that over 25,000 females were trafficked for sex and over 46,000 females and males were trafficked for labor into the United States each year ²⁷ —it is clear that it would be mistaken to consider such undocumented persons to have refused to be subject to the state, thereby violating Rom. 13:1. In fact, I do not see why Rom. 13:1-7 should play any significant role in the moral analysis of how to care for trafficking victims; such persons crossed a border under coercion and are better understood as victims in need of liberation and protection rather than as lawbreakers who face the metaphorical sword of the state's justice. As we move to consider Rom. 13:1-7 in its context in Romans and the biblical canon, further restrictions to the applicability of the passage will become clear.

Romans 13 in the Context of Romans

The command in Romans 13 to be subject to governing authorities must be situated within the broader contours of Paul's epistle to the Romans. Here, Romans 12 is especially relevant since it immediately precedes Paul's teaching on subjection to authorities. ²⁸ Several features of Romans 12 mitigate the intensity of Romans 13. First, Rom. 12:1-2 urges Roman Christians not to be ‘conformed to this world’, a command that would likely preclude wholesale acceptance of political ideologies and political actions that are contrary to Paul's larger moral vision. ²⁹ Similarly, Rom. 12:21 urges the church in Rome not to ‘be overcome by evil, but overcome evil with good’, a claim immediately followed by Paul's statement that ‘every person is to be subject to the governing authorities’ (13:1). As C.S. Song notes, evil is not restricted to individual sin, but can also take a political form. ‘It is from God's goodness itself that the state derives its authority. And insofar as the state authority reflects the goodness of God, it is to be obeyed’. ³⁰ In situations where governing authorities are demanding evil actions, it would be impossible to obey the ethical guidelines in Rom. 12:1-2, 12:21 and 13:1 simultaneously. Rather, it seems likely that Rom. 13:1-7 further explicates Paul's teaching in 12:18 that Christians should attempt to live at peace with others, which is illustrated even to the point of being subject to an empire that is often anti-Christian. ³¹ Since the most important reason for submission to the state is conscience (13:5), it is clear that acts of submission to authority which violate conscience would be problematic, which could justify prudential acts of civil disobedience.

Romans 12 raises further questions about the absolute nature of Paul's mandate to be subject to governing authorities. In 12:19, Paul prohibits the pursuit of vengeance (ɛκδικουντς), urging the Romans to ‘leave room for the wrath (οργη) of God’. When Rom. 13:4 describes the government as bearing the sword to be ‘an avenger who brings wrath’ (ɛκδικος ɛις οργην), it is unlikely that the terminological overlap is accidental. As Cullman notes, ‘the state does properly exactly the opposite of what the Christian is to do’. ³² Paul's point seems to be that God uses the state even though it operates under unchristian principles and not that the state must always (or even often) be viewed as a positive institution.

Two other passages in Romans provide helpful context for 13:1-7, deflating any absolute application of the command to be subject to governing authorities. First, we must note the likely possibility that the introduction to Romans undermines the authority of the government by setting up Christ as an alternative ruler to Caesar and by insisting on the sinfulness of humanity. N.T. Wright argues that naming Christ ‘Lord’ (1:4), calling the Romans to ‘the obedience of faith’ (1:5), and speaking of his ‘power’ (1:4) are each examples of using ‘imperial buzzwords’ to describe Jesus in a subtly anti-imperial manner. ³³ Moreover, there are counter-imperial implications to Paul's use of the word ‘gospel’ (1:1, 2), which is now ‘widely recognized’ to have Jewish roots, but also to reference the ‘“good news” heralded from around the Roman world every time the anniversary of the emperor's accession, or his birthday, came round again’. ³⁴ The introduction to Romans is set up to discretely remind Roman Christians that the true Lord to whom allegiance is owed is Christ, a theme fitting with 13:1's teaching that the authority of government derives from God. Insofar as Rom. 1:18-32 insists on the sinfulness of humanity, one assumes that Paul's claim that the governing authority is God's servant for the good (Rom. 13:4) must be further qualified, for surely some in government do not fill such a role but have a reign primarily characterized by sin. ³⁵

A second portion of Paul's letter that complicates our interpretation of Rom. 13:1-7 is found in Romans 9. The example of Pharoah in Egypt serves in Rom. 9:17 as an example of an unrighteous king that has been ‘raised up for the very purpose of showing [God's] power’. As Esau McCaulley notes, God acts through Moses to resist the Egyptian state that God has also ordained, showing that Romans 13's call to be subject to authorities is an ideal, not universally the case. ³⁶ McCaulley helpfully explains his interpretation of Romans 13 in light of Rom. 9:17 by noting that we can ‘discern and condemn evil like the prophets did’. Where Rom. 13:2 shows that governments are established by God, Rom. 9:17 reminds that at least one government (and presumably more) were established by God for the purpose of being resisted and overcome. Yet, McCaulley adds that since God is sovereign even over government, ‘we cannot claim divine sanction for the proper timing and method of solving the problems we discern’. ³⁷ In other words, we ought not replace an over-inflated view of government's divine mandate with an over-inflated view of the Christian call to civil disobedience.

In the larger context of the Epistle to the Romans, Paul's commandment to be subject to government is softened considerably. Paul clearly accepts that God may be using government to act against the ultimate divine purpose, which could also result in a situation where subjection to government might be contrary to the broader principles of the kingdom of God. When applied to the situation of undocumented immigrants in the United States, I see this fundamental tension between subjection to the state and recognition of civil disobedience when laws are unethical most clearly evident in the tension between various regional governments and the national government concerning the issue of sanctuary cities. Here, two complicating factors come into play: arguments that US immigration law is unjust, and situations where local, national, and even international law may not be in agreement.

The sanctuary city movement is a complex phenomenon in which city or state governments decide to restrict enforcement of federal immigration law to some degree, a decision that essentially renders such law null for state and/or municipal employees, including law enforcement. Often sanctuary policy is partly based on issues of local versus national sovereignty. ³⁸ In some cases, ‘sanctuary policy is claiming jurisdiction over federal tasks, forming a state within a state’, explains Janika Kuge. ³⁹ Sanctuary cities can point to diminished participation in educational and medical services under stricter immigration enforcement as a rationale for sanctuary policy, which is often chosen to prioritize opportunities for immigrants to participate in healthcare, employment and education rather than prioritizing immigration enforcement. ⁴⁰ Inclusion in such services is beneficial for the common good, boosting public health and human capital, so many cities have determined that they have good reason to pursue sanctuary policies. ⁴¹ Sanctuary cities tend to have lower crime rates, higher per capita income and stronger economies than non-sanctuary cities. ⁴² Such arguments counter the common depiction of undocumented immigrants, and particularly Latina/o undocumented immigrants as a dangerous threat. ⁴³ Though the purpose of my argument is not to fully adjudicate the ethics of sanctuary policies, a clear utilitarian argument can be made for the goodness of sanctuary cities based on improved economic, public health and public safety outcomes. ⁴⁴ In some circumstances, sanctuary practices may be rooted in human rights (a stronger ethical argument than a utilitarian one, in my opinion). This is especially the case with respect to church-based sanctuary practices in the 1980s, which responded to perceived failures of the US federal government to comply with the United Nations’ 1951 Refugee Convention. ⁴⁵ This convention provides legal avenue for refugees to seek asylum, a right often denied in practice at a federal level. ⁴⁶ Indeed, in this situation Rom. 12:13's imperative to ‘extend hospitality to strangers’ places clear tension between Romans 12 and 13 in terms of how local and state governments ought to respond to federal immigration law. Such considerations are certainly far from conclusive in justifying sanctuary policy, but they suffice for the purposes of my analysis.

Considering the perspective of an undocumented immigrant in a sanctuary city, we can see that the application of Rom. 13:1-7, when interpreted in the wider context of Romans, becomes a matter of prudence in several respects. Most significantly, read from the US context, Romans 13 does not stipulate which government the Christian is primarily subject to: local, state or federal government. ⁴⁷ In circumstances where the policies and public pronouncements of state or local governments indicate that undocumented immigrants are welcome, while federal law denies the lawful presence of such immigrants, one must rely on prudence to determine which government's position has primacy in terms of Romans 13's imperative to be subject to authorities. Here, the broader context of Romans reminds us that, though government is established by God, it is not thereby guaranteed to be godly, for it might be acting contrary to the broader Christian ethic described in Romans 12 (and elsewhere). Ultimately, Christ is the true Lord and Savior to whom allegiance is owed (Rom. 1:1-6), society as a whole is captive to sin (Rom. 1:18-32), and it may well be that an unethical government is raised up in order to be resisted (Rom. 9:17). In circumstances where local, state and federal governments are not in agreement, it would naturally fall to prudence to seek to identify which government is more in line with the broader biblical vision of justice. In principle, such prudential judgment could lead some undocumented immigrants to determine that local or state sanctuary policies are a closer approximation to kingdom ethics than are federal policies, especially where questions of rights or larger economic benefits may come into play. ⁴⁸ ‘It would be easy for us who face deportation orders to change our name or address to stay here with our families’, says Robles Loreto, one undocumented immigrant who took advantage of sanctuary when facing deportation while waiting for her immigration case to progress. ‘Sanctuary gives an option to demonstrate to the government and ICE that we can take the right course. We have always followed the rules in the U.S., and we want to show that we will keep fighting for an opportunity’. ⁴⁹

Though sanctuary cities are perhaps the clearest legal complication to consider, further governmental authorities may disagree on immigration policy. For example, another legal complication is found when international law is brought into the discussion. According to the United Nations’ 1951 Refugee Convention, asylum seekers are protected against punishment for crossing international borders to seek asylum under certain circumstances, ⁵⁰ and the right to seek asylum is guaranteed in the Universal Declaration of Human Rights. ⁵¹ Despite the expectations and rights laid out in international law, many national governments—including many among the 145 countries who have accepted the 1951 Convention or its subsequent iterations—do not recognize asylum seekers’ rights to pursue protection, instead denying them due process and deterring them through legal barriers and physical ones. ⁵² Such problems will be discussed more extensively below, but these conflicts between national and international law make it difficult to accept a simplistic account of the application of rule of law and the biblical teaching on submission to government. To complicate things further, this tension between international and national law with respect to asylum was itself a factor in early sanctuary movements in the 1980s. In other words, variances between state and national immigration policy are connected to variances between national and international law. ⁵³

The lack of clarity concerning immigration law extends beyond situations where different governmental authorities might convey competing messages or implement contradictory laws and policies. Chandran Kukathas argues that much immigration law does not even qualify as rule of law. Kukathas argues that rule of law must be characterized by intelligibility, consistency, stability, and being publicly known. Yet, much immigration law does not fit these characteristics, notes Kukathas. ⁵⁴ Take stability, for example. Immigration law in Australia changed more than twenty-five times in a decade. ⁵⁵ Immigration law is often inconsistent, as is evident in unequal asylum rates granted to asylum seekers of different nationalities fleeing similar situations. Often, the decision of which countries’ asylees are accepted is based on political considerations, ⁵⁶ while the outcome of individual cases depends on which judge hears an asylum seeker's case. ⁵⁷ The US also has a long history of disproportionately arresting and deporting Latina/o immigrants that are wrongly construed as a threat. ⁵⁸ Often, immigration law is not applied consistently and impartially. Further, immigration law is often unintelligible to the immigrant, and is largely unknown to the public. It is quite common to hear accounts of immigrants appearing in court without knowing how to make their case, ⁵⁹ and immigration hearings in the United States regularly occur without any significant legal representation. ⁶⁰ As a result, some undocumented immigrants may be eligible for legal status but be unaware of the basis for their path to such status. It is safe to say that conflicting messages from different levels of government only add to the confusion already present in much immigration law.

Romans 13 in Canonical Context

The broader canonical context complicates the depiction of authority in relation to God. The Old Testament includes a myriad of examples of kings good and (mostly) bad, while including both the hope for a future just king of the Davidic line and the idea that a desire for a king is ultimately a rejection of God (1 Sam. 8:7), one that will end in injustice and hardship for Israel (1 Sam. 8:11-18). Similarly, the New Testament includes a wide range of perspectives on the state and other authorities, ranging from Revelation 13's depiction of the Roman state as a mythical beast and enemy of the church to 1 Peter's teaching to submit even to authorities that are unjust (1 Pet. 2:13-14, 18; 3:1-6). Various treatments of Romans 13 emphasize one or another of these passages to contextualize Paul's teaching, ⁶¹ and many attempts fail to maintain the tensions of Scripture. ⁶² While the universalizing of one portion of Scripture tends to undermine or ignore other parts of the text, a perspective that centers prudence can recognize the moral evaluations required to determine which passages of Scripture are most relevant to a given situation, while still affirming the moral authority of the entirety of the canon. While a full account of prudence's potential work in weighing all relevant biblical data exceeds the scope of this article, a few remarks on the most significant passages for deflating an absolutization of Romans 13 are necessary.

The authors of biblical narratives always have an implied ethic, often revealed in the subtle ways that characters are described whereby they are shown to be righteous or sinful. ⁶³ The author's implied ethic in various accounts of civil disobedience throughout the biblical canon provides further biblical warrant for not submitting to governing authorities. The most significant reason for civil disobedience that is relevant to this article's line of inquiry is civil disobedience for the preservation of life. ⁶⁴ Since personal safety plays a significant role in the reasons why some undocumented immigrants do not submit to immigration law, biblical narratives whose implied ethic accepts civil disobedience for preservation of life are therefore particularly relevant to the moral reasoning of undocumented immigrants.

In several instances in the Old Testament, protagonists in the biblical narrative disobey governing authorities for the purpose of saving life. For example, in Exod. 1:15-21, the Israelite midwives Shiphrah and Puah disobey a direct command by Pharoah to kill Israelite boys. ⁶⁵ The narrator explains that the women do so because they ‘feared God’ (1:17), and as a result of their disobedience, ‘God dealt well with the midwives’ (1:20) and ‘gave them families’ (1:21). Such textual clues clearly show that the implied ethic of the narrative approves of the midwives’ actions—it is acceptable to disobey commands from governing authorities that will take life.

The book of Esther provides evidence that it is also acceptable to disobey policies for the purpose of saving a life. According to Est. 4:11, going into the presence of the Persian emperor without being summoned was by law punishable by death. ⁶⁶ Yet, Esther is depicted in a favorable light, such that we can infer an implied ethic that approves of her action. The book of Esther famously does not include direct reference to God, yet an important oblique reference to providence is found immediately after the queen's decision to disregard the rule prohibiting entry into the king's court without invitation—Mordecai suggests that she has come to power ‘for such a time as this’ (Est. 4:15). Esther's plan to fast with all of Israel (4:16) before her act of civil disobedience also depicts her in a positive moral light as one who fears and trusts in the Lord. Such clues suggest that Esther's actions provide biblical warrant for civil disobedience not only for the purpose of refusing to take a life as in the case of Shiphrah and Puah, but also for the purposes of saving lives. Moreover, where Shiphrah and Puah are disobeying an immoral law requiring genocide through the murder of children, Esther is violating a rule to not appear unless summoned, which is unreasonable, perhaps, but not intrinsically unjust. This suggests that laws might be ignored for the purpose of saving life even if the laws themselves are not unjust. ⁶⁷ Since all three figures lack explicit divine directives for their civil disobedience, they serve as ideal models for prudential civil disobedience. ⁶⁸

Here, the broad canonical picture of civil disobedience may seem incompatible with Paul's teaching in Rom. 13:2—‘whoever resists authority has opposed the ordinance of God’—and one may be tempted to eliminate one side of the canonical picture, either by denying any applicability of Old Testament narrative today, or else by reducing Rom. 13:1-7 to an example of irony and not a genuine moral teaching relevant to all Christians. Neither extreme seems necessary. ⁶⁹ Perhaps the resistance of authority Paul has in mind has more to do with the institutions of government as a whole rather than with each individual ruling of government, since the latter may conflict with God's preceptive will. ⁷⁰ This hypothesis would fit both the canonical acceptance of civil disobedience (tacitly endorsed in Rom. 9:17) and the practical implications of Paul's teaching in Rom. 13:6 to pay taxes, for what is the withdrawal of taxes except the rejection of one's duty toward governmental authority in entirety?

Canonical stories of civil disobedience provide the most extensive basis for a prudential judgment by an undocumented immigrant to cross borders illegally or to remain without documentation within an unwilling host country. Such judgments might be prudential under many circumstances, but let me focus on three. First, many who face the threat of death do not have avenues for lawful immigration to many potentially safer destinations. Under the 1951 Refugee Convention, individuals who have a well-founded fear of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group have a right to protection. ⁷¹ In other words, those who might be subject to violence or death from their national government due to their religion, for example, or those who might suffer violence from a criminal network due to their political stance—and who might not find protection from this network from police or their government—would qualify for refugee status and asylum. However, those fleeing war, failed states, or contexts of extreme criminal violence, often called nonconvention refugees, may not be eligible for immigration through lawful avenues because they do not fit the technical legal definition of a refugee. ⁷² In such situations, a prudential judgment might require civil disobedience of immigration law to protect life where no legal avenue is available.

In point of fact, there is evidence that many undocumented immigrants have completed precisely this sort of moral calculation that preservation of life is of greater value than the rule of law. Ethnographic work among smugglers bringing Syrian nonconvention refugees into Europe found that many smugglers justified the morality of their breaking immigration law by appealing to the fact that they were helping migrants escape danger. ⁷³ Another study among unaccompanied immigrant minors found a complex mixture of factors leading to migration. Most interview subjects had many reasons to enter the United States without documents, including economic opportunity and the presence of family in the United States. However, the study found that many undocumented immigrant minors faced violence and felt the United States to be the best path to safety. ⁷⁴ For an important subset of those who cross borders without permission, the matter is framed as a matter of life and death and the prudential decision seems clear.

A second set of circumstances that might justify civil disobedience in the name of protecting life would be when an individual or family that might qualify as a refugee or asylee under national law are denied the opportunity to have their case adequately considered by the government. Such denial of due process is prevalent across the US immigration system, from Operation Streamline, which conducts mass hearings of up to about seventy intercepted undocumented immigrants at a time, a process that often prevents substantive legal consultation or a real hearing of evidence, to arrests made in the Caribbean where potential asylees and refugees are often denied a genuine hearing or else provided a cursory and trivial one that is almost never passed. ⁷⁵ When an asylee is denied the opportunity to avail him or herself of the opportunities for protection provided by law, they might decide to accept the unjust determination and seek asylum elsewhere, but if pursuit of asylum elsewhere is not reasonably possible, for example, then an undocumented immigrant might decide to undertake an unauthorized border crossing for the purpose of saving life, and this decision might be a prudential one in line with Scripture. Technically, such actions may even be in line with the rights afforded by immigration law, if not the implementation of this law in concrete practice.

A third and final example relates to erroneous court rulings. Often, immigrants who flee dangerous situations may not take time to gather the documentation needed to receive asylum. This can result in situations where individuals with a well-founded fear of persecution are not legally recognized as refugees and therefore are denied asylum. If the threat in a country of origin is grave enough, it may be a prudential decision to remain as an undocumented immigrant despite a removal order. Similarly, one large determinant of immigration hearings is simply the matter of which judge hears the case. An unfavorable ruling due to the appointed judge when the immigrant denied legal recognition faces serious risk of life to self or family could lead to a prudential judgment that civil disobedience was in order. Here, ignoring a removal order may save life much in the manner that Esther, Shiphrah and Puah's actions saved life by refusing to be subject to the rule of law. Not every undocumented immigrant would fit such conditions, but a considerable number likely would.