Are Ron DeSantis' Migrant Flights Legal?

Last week, Republican Florida Gov. Ron DeSantis arranged two flights carrying nearly 50 migrants from San Antonio, Texas, to Martha's Vineyard, Massachusetts.

Almost as soon as news broke about the flights, allegations began to fly: kidnapping, misuse of state funds, deception, and human trafficking. Officials in Texas and Massachusetts have already launched investigations into some of those angles. Political figures ranging from Florida Agriculture and Consumer Services Commissioner Nikki Fried to Democratic California Gov. Gavin Newsom have called for the Justice Department to investigate DeSantis' actions.

Yet a major question at the center of this uproar remains unanswered: Did the Martha's Vineyard flights violate any laws?

Two big legal questions are germane to the stunt: one relating to how migrants were induced to board flights and the other relating to using state funds. Legal experts, lawmakers, and the architects of the flights are now debating what was and wasn't legally permissible about the scheme.

DeSantis, for his part, has said the migrant flights were "clearly voluntary." Taryn Fenske, a spokesperson for DeSantis, shared with Axios a redacted consent form for the flight. That form mentions a "final destination of Massachusetts" and holds "the benefactor or its designated representatives harmless of all liability" incurred during the journey, which it says is meant to transport the signatory "to locations in sanctuary States."

Though much of the form is translated into Spanish, the mention of Massachusetts as the final destination is not. The only mention of Massachusetts in the Spanish portion of the redacted document is a handwritten abbreviation: "MA."

Three of the migrants flown to Martha's Vineyard filed a lawsuit against DeSantis yesterday, alleging that Florida officials "made false promises and false representations" that if they "were willing to board airplanes to other states, they would receive employment, housing, educational opportunities, and other like assistance upon their arrival." The lawsuit notes that a woman "gathered several dozen people…to sign a document in order to receive a $10 McDonald's gift card." Per the suit, the woman didn't explain what the consent form said. Migrants interviewed by NPR also explained that the same woman promised they would be flown to Boston and receive expedited work papers if they boarded the flights in San Antonio.

With this background in mind, some commentators have suggested the flight scheme may have run afoul of Texas law. Under title 5, chapter 20 of the Texas penal code, the crime of "unlawful restraint," or restricting someone's movement without consent, includes actions that involve "force, intimidation, or deception." An unlawful restraint offense is a misdemeanor, except when the victim is under 17 years old—then it's a state jail felony. At least some of the migrants DeSantis sent to Martha's Vineyard were children.

Legal experts surveyed by Politico suggested that federal criminal trafficking statutes weren't relevant unless migrants were transported against their will. If coercion was involved, the legality becomes much murkier. "If someone is told, 'Hey, get on the bus. We're going to Chicago because we have a job for you' and it's not true, that person has been victimized," said Steven Block, a Chicago lawyer and former assistant U.S. attorney who dealt with trafficking and corruption cases.

The matter of state funds is at least slightly easier to distill. Florida's 2021–2022 budget set aside $12,000,000 to implement "a program to facilitate the transport of unauthorized aliens from this state consistent with federal law." Funds that weren't spent in 2021–2022 rolled over to be used for the same purpose in 2022–2023. This is the pot through which DeSantis financed the Martha's Vineyard flights, and the governor says he'll spend "every penny" of it to "make sure that we're protecting the people of the state of Florida."

The 2022–2023 spending bill explicitly provides money for transporting migrants "from this state." That would seem to indicate an origin in Florida. But the Martha's Vineyard flights originated in San Antonio, which DeSantis acknowledges. Florida Democrats are now questioning whether this rendered the flights illegal. They are attempting to block funding for the relocation effort. A potential sticking point is that the flights were routed through Crestview, Florida, before reaching Martha's Vineyard, ostensibly to refuel.

Geography aside, the migrants' immigration status may also clash with the Florida budget language. State Sen. Aaron Bean (R–Jacksonville) stated in March that the relocation scheme wouldn't apply to people who had requested asylum in the U.S. after fleeing communist or socialist countries since "they are here lawfully." Further, the 2022–2023 budget specifies that the relocation scheme only applies to people who are "unlawfully present" in the country.

After crossing the U.S.-Mexico border, the migrants now suing DeSantis—all recent immigrants from Venezuela—turned themselves over to federal immigration officials, the lawsuit explains. Each has "active federal proceedings to adjudicate their immigration status," which authorizes them to stay in the United States unless their immigration court proceedings determine otherwise.

According to New York Times reporting, the migrants "were screened and released to face proceedings in the future." This is how the Biden administration has been processing nearly all Cubans and Venezuelans who cross the border since the U.S. "lacks the diplomatic relations with those countries that would be necessary to send them back." The migrants likely plan to claim asylum, during which they may stay in the United States. According to many reports, as well as the new lawsuit against DeSantis, the migrants are not here unlawfully.

Still, many pertinent details will only become clear when they're ironed out in court. The migrant flights could be lawful and immoral, misguided, hypocritical, expensive, and tarnish America's legacy as a nation of immigrants. At a minimum, it seems DeSantis has chosen to spend state resources on a legally dubious political stunt.