The Corner

Law & the Courts

Refugee-Policy Reforms — Enduring or Ephemeral?

(Jim Young/Reuters)

At his recent rally in Minneapolis, President Trump said the following:

I issued an executive action, making clear that no refugees will be resettled in any city or any state without the express written consent of that city or that state.

This is sort of right, but not really — and overselling the administration’s refugee reforms may short-circuit a more enduring potential change by the courts.

Among last month’s refugee policy changes was an “Executive Order on Enhancing State and Local Involvement in Refugee Resettlement,” which is what the president was referring to. And that order does instruct the secretaries of State and Health and Human Services to:

develop and implement a process to determine whether the State and locality both consent, in writing, to the resettlement of refugees within the State and locality, before refugees are resettled within that State and locality under the Program.

The order is essentially a reinterpretation of the clause in the 1980 Refugee Act requiring that federal authorities “consult regularly with State and local governments and private nonprofit voluntary agencies concerning the sponsorship process and the intended distribution of refugees among the States and localities.” The reason for such consultation is that the states and localities will have to bear the heavy cost of providing services for refugees who, unlike other immigrants, are eligible for welfare on the same basis as citizens from the moment they arrive. (The feds long ago welshed on the promise to reimburse states.) But the consultation has become meaningless, and refugees have been resettled wherever the feds and the advocacy groups they contract with want, whether the states and localities like it or not. Tennessee, for instance, formally withdrew from the federal refugee resettlement program, after which the number of refugees resettled there increased by more than 60 percent. A federal contractor took over the resettlement program in the state and was able to raise the number of refugees resettled in Tennessee even while overall numbers at the national level fell.

That’s why I described the new executive order as giving states and localities a “veto” over resettling refugees in their jurisdictions. Wrongly, as it turns out.

Because further down there’s an escape hatch which allows the federal government to override a state or local decision to refuse resettlement:

If the Secretary of State intends to provide for the resettlement of refugees in a State or locality that has not provided consent, then the Secretary shall notify the President of such decision, along with the reasons for the decision, before proceeding.

So it’s true that during this administration refugees will only be resettled in places that consent, as the president said. But a future Democratic administration wouldn’t even have to revoke or modify Trump’s executive order to begin sending refugees to places that don’t want them, so long as Secretary of State O’Rourke or Castro email the White House a line or two about why they did it.

This point may seem banal; after all, the other changes to the refugee program — the lower ceiling for the current fiscal year, and the reduction in the UN’s role in selecting who will come to the U.S. — can also be undone by a future administration, as can any other executive action (unless our lawless judiciary obstructs it, which a future Democratic president doesn’t have to worry about). The difference here is that there’s a lawsuit in progress that could bring about a much more enduring change, and taking the president at his word about having solved the problem could lead to the lawsuit being abandoned prematurely.

The state of Tennessee, represented by the Thomas More Law Center, sued in federal court in 2017 to challenge the federal government’s authority to resettle refugees in unwilling jurisdictions. (For background, see here.) The state’s claim is that resettling refugees in a state that is unwilling (with all the attendant costs) is comparable to Obamacare’s mandate that states expand Medicaid, which was struck down by the Supreme Court in 2012.

Tennessee’s case was dismissed at the district and circuit level, and last Wednesday the Sixth Circuit denied the petition for rehearing en banc. The merits of the case were never considered; the court dismissed the case on standing, as if the Tennessee legislature has no right to argue with the appropriation of state funds to pay for a federal program. This tees up a petition to the Supreme Court to hear the case. But the president’s rhetoric that the issue has already been resolved could cause Tennessee to forego an appeal to the Supreme Court.

Not only would a favorable Supreme Court ruling prevent a future administration from resettling refugees in unwilling jurisdictions, but it would make it difficult to dramatically ramp up resettlement numbers. A future Democratic administration is guaranteed to try to increase refugee numbers to unprecedented levels, ostensibly to “make up” for lower numbers during this administration. But it will be hard to place 300,000 or 400,000 or 500,000 refugees a year if they all have to go to California and New York and a few other states that virtue-signal their willingness to accept refugees — not to mention the huge additional welfare costs that would be concentrated in those states.

There’s no guarantee that the Supreme Court will find rule for Tennessee. It could rule against the state or refuse to hear the case altogether, leaving the lower court decision in place. But you can’t know if you don’t try. And prematurely declaring victory would foreclose this possibility.

Of course, the best way to change legislation is for the legislature to legislate. But since Congress is no longer in the business of making laws, a favorable court ruling is the next best thing — certainly better than an executive order that could prove illusory.


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