A series of sensational news reports on Thursday suggested that Florida Gov. Ron DeSantis — who many view as a contender for the 2024 Republican presidential nomination — could potentially try to interfere if a New York grand jury indicts former President Donald Trump and seeks his extradition from Florida, where he’s currently residing.
Whereas many international extradition treaties require the underlying crime to be prohibited by both the requesting and receiving countries, federal law does not
Citing an obscure provision of Florida law that allows the governor, upon receiving an extradition request from another state, to investigate "whether the person ought to be surrendered,” the argument goes that this provision gives DeSantis the chance to play hero with the former president’s supporters by dragging his feet.
The legal reality is decidedly to the contrary. If Trump is indicted in New York, both the U.S. Constitution and a federal statute dating to 1793 require DeSantis (or the governor of whatever state Trump is in at the time) to hand him over. And if DeSantis still refuses, a 1987 Supreme Court decision makes clear that federal courts can order him to comply. Unlike in cases of international extradition, where treaties often leave significant room for political and diplomatic machinations and maneuvering, the law of interstate extradition is both clear and straightforward.
Let’s start with the Constitution itself. The Extradition Clause of Article IV provides that “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.” The provision contemplates no discretion on the part of the state receiving the request, but speaks instead of a mandate to return the prisoner.
Congress reinforced that understanding of the clause in 1793 when it enacted the Extradition Act, which identifies no circumstances in which a governor receiving an extradition request has the right to refuse to comply. And whereas many international extradition treaties require the underlying crime to be prohibited by both the requesting and receiving countries (the “double criminality” principle), federal law does not — as the Supreme Court expressly held in 1861.
The trickier question is what remedy a state has if another state refuses to comply with an extradition request.
Nor can a state like Florida object to an extradition on the ground that they have concerns about the fairness of the proceedings in the requesting state. In 1998, the Supreme Court considered a case in which New Mexico had refused to comply with an Ohio extradition request after the New Mexico Supreme Court concluded that the individual at issue had fled Ohio under duress — because he feared that Ohio was going to revoke his parole without due process. Unanimously, the U.S. Supreme Court held that, even if those claims had merit, they did not give New Mexico the right to refuse extradition:
“In case after case we have held that claims relating to what actually happened in the demanding State, the law of the demanding State, and what may be expected to happen in the demanding State when the fugitive returns are issues that must be tried in the courts of that State, and not in those of the asylum State.”
The trickier question is what remedy a state has if another state refuses to comply with an extradition request. On the eve of the Civil War in 1861, in the same decision in which it first held that states had an obligation to comply with extradition requests from other states, the Supreme Court held that federal courts lacked the power to enforce that obligation.
At issue in Kentucky v. Dennison was the governor of Ohio’s refusal to extradite a man who had been charged in Kentucky with assisting in the escape of an enslaved person. Chief Justice Roger Taney, who had written the court’s infamous pro-slavery ruling in Dred Scott four years earlier, tried to mitigate the impact of a holding that Kentucky had a right to demand extradition — by making it impossible for Kentucky to enforce that right in federal court.
Explaining that Dennison was a “product of another time,” “with the practical power of the Federal Government at its lowest ebb since the adoption of the Constitution,” the Supreme Court overruled it in 1987. As Justice Thurgood Marshall wrote for the majority in Puerto Rico v. Branstad, the Extradition Clause of Article IV and the 1793 Extradition Act wouldn’t mean all that much if they couldn’t be enforced against recalcitrant states, and it would make little sense to leave such enforcement to state courts in either the requesting or receiving jurisdiction.
Thus, a state has the right to ask federal courts to issue a writ of mandamus — a judicial order commanding its recipient to perform a nondiscretionary duty — against governors who refuse to comply with extradition requests, regardless of the putative basis for such noncompliance.
None of this means, of course, that DeSantis might not still try to obstruct a hypothetical future extradition request from New York. But he’d lose, and lose quickly. Politically, that might still be worth it. Legally, though, it would be frivolous.
