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Three Thoughts on Refugee Resettlement Federalism

Steve Vladeck
Tuesday, November 17, 2015, 12:07 AM

Every hour, it seems, another governor is finding the nearest microphone to proclaim that, after Friday's barbaric attacks in Paris, none of the 10,000 Syrian refugees that the federal government still plans to admit into the United States will be "allowed" into their state.

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Every hour, it seems, another governor is finding the nearest microphone to proclaim that, after Friday's barbaric attacks in Paris, none of the 10,000 Syrian refugees that the federal government still plans to admit into the United States will be "allowed" into their state. Although the heated rhetoric accompanying these proclamations deserves its own criticism, I wanted to use this post to make three far more mundane legal observations: (1) that the contemplated state bans on the admission of refugees violate the Fourteenth Amendment; (2) that federal law gives the President unquestioned power to admit refugees during an "unforeseen emergency refugee situation"; and (3) that federal law also gives the federal government a wide array of power to deny refugee status to individuals who may pose a threat to our national security. Simply put, the law is both well settled and well conceived on the relative roles of the state and federal government when it comes to refugee crisis. Thus, these governors are not only shamelessly trying to capitalize upon the fear produced by Friday's attacks, but they're doing so without even a little bit of a legal leg to stand on. Below the fold, I elaborate upon these three points.

I. The Fourteenth Amendment and the Power of States to Ban Refugees

100 years ago this month, the Supreme Court decided Truax v. Raich--a case that arose from an Arizona constitutional amendment that required nearly all businesses operating within the state to have at least 80% of their workforce comprised of "qualified electors or native-born citizens of the United States." Writing for an 8-1 majority, then-Justice Charles Evans Hughes held that the Arizona law unquestionably violated the Equal Protection Clause of the Fourteenth Amendment, because "the complainant, a native of Austria, has been admitted to the United States under the Federal law. He was thus admitted with the privilege of entering and abiding in the United States, and hence of entering and abiding in any State in the Union." As Hughes continued,

The authority to control immigration -- to admit or exclude aliens -- is vested solely in the Federal Government. The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for, in ordinary cases, they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the States as chose to offer hospitality.

Thus, the Court held, the Arizona amendment was unconstitutional. If anything, Truax was a harder case than a straight state ban on particular classes of refugees, because the law allowed 20% of employees to be non-citizens. Nor is there any argument that the current Court might not follow Truax; Justice Kennedy cited it with approval three years ago in the substantively similar decision in Arizona v. United States. Whether refugees should be admitted to the United States--and, if so, which ones--is an important and complex question. But once it's answered by the federal government, states don't get their own say.

II. The Relative Powers of the Executive Branch and the States Under Federal Immigration Law

It's true that federal law does contemplate at least some role for state and local governments when it comes to resettlement of refugees already admitted. But that role is more than a little modest. Per the (somewhat long-winded) terms of 8 U.S.C. § 1522, states are supposed to be "consulted" with regard to "the intended distribution of refugees among the States and localities before their placement in those States and localities," and "With respect to the location of placement of refugees within a State," the federal government "shall, consistent with [its] policies and strategies [for refugee resettlement] and to the maximum extent possible, take into account recommendations of the State." In other words, states get consulted, and they get to make recommendations about where within their territory specific refugees should be resettled. That's more than nothing, but it's a lot less than a lot. There's no veto; there's no remedy if the federal government doesn't actually "consult"; and there's no requirement that the federal government actually implement whatever recommendations the state may make. To be sure, states can make life difficult for resettled refugees by, among other things, shutting down cooperative state/federal programs designed to aid resettlement, and they can make lots of political trouble for the federal government, but refusing to cooperate and complaining loudly is not remotely the same thing as having the legal authority actively to prevent resettlement.

Contrast that with the far more express authority that the Refugee Act of 1980 gives to the President. Here's 8 U.S.C. § 1157(b):

If the President determines, after appropriate consultation, that (1) an unforeseen emergency refugee situation exists, (2) the admission of certain refugees in response to the emergency refugee situation is justified by grave humanitarian concerns or is otherwise in the national interest, and (3) the admission to the United States of these refugees cannot be accomplished under [the usual refugee provisions], the President may fix a number of refugees to be admitted to the United States during the succeeding period (not to exceed twelve months) in response to the emergency refugee situation . . . .

Moreover, contra some of the suggestions floating around Twitter on Monday, Congress has already appropriated funds to allow for refugee resettlement during FY2015 -- $3.06 billion -- and so there's no need for a new spending bill. Indeed, a bill introduced last month by Senator Lindsey Graham would have appropriated an additional $1 billion to further help with refugee resettlement, although that bill may well become another casualty of Friday's attacks. But whatever happens with the Middle East Refugee Emergency Supplemental Appropriations Act, the important points for present purposes are two-fold: Federal law gives the President both the authority and the money unilaterally to resettle refugees as part of an "unforeseen emergency refugee situation," and it gives states an incredibly modest consultation role that comes with no teeth or enforcement mechanism. So even short of an outright ban on Syrian refugees, states don't have much of a legal leg to stand on in otherwise objecting to the resettlement of Syrian refugees into their territory.

III. Limits on Refugee Status

I've saved perhaps the most important point for last--that federal law does not allow terrorists to use refugee status as a shield. On the contrary, federal law for refugee admission dovetails with federal law for asylum, which is rather explicit that applicants are ineligible if "there are reasonable grounds for regarding the alien as a danger to the security of the United States," or if they are otherwise inadmissible because of their connections to terrorist groups. As Frances Townsend (Homeland Security and Counterterrorism advisor to President George W. Bush from 2003 to 2008) wrote in a Foreign Policy essay last month, albeit before Paris,

Because of the conditions Syrian refugees are fleeing they are often without the most basic identifying documents: birth certificates, passports, or national identification cards. In these circumstances, all U.S. agencies will have for vetting is biometrics and names. Fortunately, there are dozens of U.S. databases that will support and assist even this kind of limited vetting within: the State Department; the Department of Homeland Security; the National Counterterrorism Center; the Terrorist Screening Center; the FBI, the intelligence community and the Department of Defense.

Of course, the vetting isn't fool-proof, and there's a non-zero chance that individuals will fall through the cracks. As DHS Secretary Jeh Johnson conceded last month, "We may have somebody who comes to us and is simply not on our radar for any discernible reason, and there may also be the possibility that somebody decides to do something bad after being admitted through the process." But that's true of all immigration--and is in no way hindered by existing limits on statutory authorities. In other words, federal law provides a wide array of tools to help the government sort out bona fide refugees from those with more sinister motives. Short of simply closing America's borders altogether, it's not clear what more the political branches could do to protect against such threats.

I don't mean to suggest that security concerns are irrelevant, especially after and in light of Friday's horrendous attacks in Paris. My point is far more modest: as a matter of constitutional law, federal statutes, and simple common sense, refugee admission and resettlement is up to the federal government, and not the states. If governors truly are concerned about the security threat posed by Syrian refugees, then they can go to Congress and demand tighter limits on (or more rigorous vetting of) emergency refugees, or they can try to convince the President to tweak the relevant federal policies. That is to say, they can push for changes at the federal level. State law, however, has virtually no role to play in the matter--and therefore provides no foundation for the "not-in-my-backyard" rhetoric coming from a growing number of state chief executives.

Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.

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