Not surprisingly, the news that at least one of the attackers in Paris on Friday arrived in Europe among the Syrian refugees that have flooded the continent since the summer and made their way to Paris thanks to the relatively open borders of the European Union is fueling a backlash here in the United States against Obama Administration plans to settle some refugees here. On the national level, analysts are saying that the news will likely give added political lift to Congressional efforts to block that plan and, indeed, Senators Rand Paul and Ted Cruz have already announced plans to introduce legislation to block settlement of Syrian refugees in the United States. Additionally, Republican Presidential candidates such as Mike Huckabee and Ben Carson are calling on Congressional leadership to take action to block the Administration’s plans. New Jersey Governor Chris Christie said last night that he would not even allow Syrian immigrant children under the age of five into his state. Donald Trump, unsurprisingly, is saying that Syrian refugees could be a ‘Trojan Horse’ for ISIS. Even Ohio Governor John Kasich, who had initially been one of th few Governors and candidates for President who was saying that the U.S. should take in more Syrian refugees than it has been, is now saying that the refugees should not be allowed in the United States. Meanwhile, some Republicans, specifically Jeb Bush and Ted Cruz have said that if the United States does accept Syrian refugees, it should limit itself to accepting only Christian refugees. The most significant movement so far, though, has come at the state level as numerous Governors, mostly Republicans, have announced that they will seek to block the settlement of any Syrian refugees in their states:
Governors across the country are scrambling to close off their states to resettled Syrian refugees in the wake of the deadly terror attacks in Paris that are linked to Islamic State extremists.
The list of states climbed quickly to 23 by Monday evening, after President Obama said that the U.S. would continue to accept refugees and denounced efforts to stop those fleeing violence from coming to the United States as “shameful.”
Governors of Illinois, Ohio, Florida, North Carolina, South Carolina, Maine, Iowa, Oklahoma, Wisconsin, New Jersey, New Hampshire, Arizona, Indiana, Massachusetts, Idaho, Louisiana, Michigan, Alabama, Texas, Kansas, Georgia, Mississippi, and Arkansas — a majority of them Republican — have said that they are seeking to stop the relocation of new Syrian refugees to their states out of fear that violent extremists posing as refugees might gain entry to the country.
New Hampshire Gov. Maggie Hassan, who is also challenging Sen. Kelly Ayotte (R-N.H.) for her Senate seat, is the first Democrat to express support for halting the flow of refugees to the U.S. pending further assurances that the refugee vetting process is adequate.
“The Governor has always made clear that we must ensure robust refugee screening to protect American citizens, and the Governor believes that the federal government should halt acceptance of refugees from Syria until intelligence and defense officials can assure that the process for vetting all refugees, including those from Syria, is as strong as possible to ensure the safety of the American people,” William Hinkle, a spokesman for Hassan, said in a statement.
At the same time, several acknowledged that they do not have the ability to stop the federal government from accepting and financing the resettlement of refugees to the United States. They have also sought reassurances that the process used to screen refugees is adequate.
Non-profit agencies who work with the federal government to resettle refugees in the U.S. confirmed that while the cooperation of states and localities helps in the process, no governor can impede the movement of refugees in the U.S. once they have legal status.
“Governors and state officials do not have the capability to prevent a refugee who is here and admitted lawfully to the U.S. from residing in their state. It is not something they can do,” said Lucy Carrigan, a spokeswoman for the International Rescue Committee. “There is a close collaboration with governors and mayors and community leaders about the capacity of the area for refugees and where they can go, but once they have legal status, you cannot impede their transit between different states.”
According to the Obama administration, which has stated that it hopes to resettle at least 10,000 Syrian refugees, more than 180 cities and towns have expressed willingness to accept refugees, despite the recent groundswell of opposition from some governors. The U.S. has accepted more than 2,100 refugees from Syria since 2012, most of them in the last year.
The Obama Administration has indicated that the previously announced plan to increase the number of refugees the United States will accept will go forward notwithstanding the objections that have been voiced, and in a press conference yesterday before leaving the G-20 Summit, President Obama blasted those Republicans who suggested imposing a religious test for those entitled to refugee status:
Obama also pointedly addressed the issue of whether the United States and other countries should continue to accept refugees, given the fact that one of the participants in the Paris plot may have come in with Syrian migrants. He said the United States would continue to accept more refugees from Syria and elsewhere, though ”only after subjecting them to rigorous screening and security checks.”
“Slamming the door in their faces would be a betrayal of our values,” he said. “Our nations can welcome refugees who are desperately seeking safety and ensure our own security. We can and must do both.”
Without directly naming GOP presidential candidates, the president blasted political leaders for suggesting the United States should accept only Christians fleeing Syria. He alluded to the fact that some of these same politicians — namely Sen. Ted Cruz (R-Tex.), whose father fled Cuba decades ago – -had benefited from America’s willingness to accept refugees.
“And when I hear folks say that, well, maybe we should just admit the Christians but not the Muslims, when I hear political leaders suggesting that there would be a religious test for which person who’s fleeing from a war-torn country is admitted, when some of those folks themselves come from families who benefited from protection when they were fleeing political persecution, that’s shameful,” he said, his voice rising. “That’s not American. That’s not who we are. We don’t have religious tests to our compassion.”
Before getting to the merits of the arguments that the Governors and other politicians are making here, as well as the rather obvious political implications, it’s worth noting that the Governors likely don’t have the legal authority to stop the Federal Government from doing anything:
The problem for Jindal, Abbott and the other governors opposed to admitting refugees, however, is that there is no lawful means that permits a state government to dictate immigration policy to the president in this way. As the Supreme Court explained in Hines v. Davidowitz, “the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution.” States do not get to overrule the federal government on matters such as this one.
Just in case there is any doubt, President Obama has explicit statutory authorization to accept foreign refugees into the United States. Under the Refugee Act of 1980, the president may admit refugees who face “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” into the United States, and the president’s power to do so is particularly robust if they determine that an “unforeseen emergency refugee situation” such as the Syrian refugee crisis exists.
This power to admit refugees fits within the scheme of “broad discretion exercised by immigration officials” that the Supreme Court recognized in its most recent major immigration case, Arizona v. United States. Indeed, in describing the executive branch’s broad authority to make discretionary calls regarding immigration matters, Arizona seemed to explicitly contemplate the circumstances that face President Obama today. The United States may wish to allow a foreign national to remain within its borders, the Court explained, because the individual’s home nation “may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return.”
Moreover, the Court explained, America could suffer severe foreign policy consequences if the executive does not enjoy broad discretion over immigration matters. “The dynamic nature of relations with other countries,” Justice Anthony Kennedy explained in his opinion for the Court inArizona, “requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.”
At the same time, some legal experts have noted that state officials could use the authority they do have to make the Federal Government’s efforts more difficult:
Experts say that while the states may not have the legal authority to block their borders, state agencies have authority to make the process of accepting refugees much more difficult.
“When push comes to shove, the federal government has both the plenary power and the power of the 1980 Refugee Act to place refugees anywhere in the country,” said Kevin Appleby, the director of migration policy at the U.S. Conference of Catholic Bishops, the largest refugee resettlement organization in the country.
Appleby said one thing the states could do was to cut their own funding in the area.
American University law professor Stephen I. Vladeck put it this way: “Legally, states have no authority to do anything because the question of who should be allowed in this country is one that the Constitution commits to the federal government.”
But Vladeck notes that without a state’s participation the federal government would have a much more difficult time. “So a state can’t say it is legally objecting, but it can refuse to cooperate, which makes thing much more difficult.”
The point that the Federal Government cannot force states to provide their own resources to aid in the resettlement of any of these refugees is a long standing one based in general principles of Federalism that no Federal Court is likely to question. In that respect, then, the twenty-three, and possibly more, Governors who have come out against the settlement of refugees in their states could have a real impact regardless of what impact the Obama Administration make take. Additionally, Republican control of Congress means that the GOP could theoretically seek to defund resettlement efforts, although its unclear just how much authority Congress has to police the way that the State Department utilizes the funds allocated under the Refugee Act of 1980 and related laws that apply in this situation. Congress could seek to change those laws, of course, but that would run into the issue of both the Senate filibuster and the Presidential veto, both of which would likely be able to block any such effort to amend relevant Federal laws on refugee policy. Broadly speaking, then, if the Obama Administration is intent on going forward with this program there is little that the States can do to stop it, and Congressional authority to put limits on the program may be more constrained than they appear.
Now, with the legal issues behind us, let’s move on to the practical issues.
From the viewpoint of simple human decency, not to mention those provisions of international law that govern obligations to war refugees, the idea of turning our backs on refugees at the same time that we are talking about intensifying the war that is one of the major reasons they are running away from their homes to begin with is simply inhumane on a fundamental level. Add to that the fact that the force they are running from, ISIS, is in a very significant way something that evolved directly out of our own decision to invade and occupy Iraq twelve years ago, and the callousness that the is represented by the position that these Governors, and many of the Republican candidates for President, are taking takes on an even more odious moral connotation that is only made worse by the suggestion of those such as Cruz and Bush that we limit our compassion only to Syria’s Christian population.
All of that being said, it has to be acknowledged that the attacks in Paris have changed the politics of the debate over what the United States should do to help the Syrian refugees. Even before Friday, the Obama Administration’s plan was facing opposition in the state’s and in Congress over concerns that even the rather rigorous screening process that the State Department uses to determine whether someone claiming refugee status is eligible to be resettled in the United States would be inadequate to screen out potential ISIS sleeper agents or others who may attempt to sneak into the West along with a flood of otherwise legitimate refugees. Now that this has apparently happened, the political equation for both Governors of the respective states and candidates for President arguably comes down even more on the side of being cautious.
A story from the political career of Bill Clinton is, perhaps, illustrative of what these politicians are facing. Late in his first term as Governor of Arkansas, Clinton acceded to a request from President Carter to allow many of the Cubans who had arrived during the Mariel boatlift to be settled at a military base in Arkansas. When riots broke out at that camp, and others around the country, due largely to the crowded conditions in the camp, Clinton ended up suffering political blowback that contributed to him losing his first bid for re-election in 1980. Clinton managed to bounce back and returned to office two years later, but the lesson should be clear. It is politically safer for these politicians to oppose the refugee policy than it is for them to support it and then risk the possibility that something will go wrong that could end up harming them politically in the future. Cowardly? Yes, I suppose it is, but that’s how politicians operate in cases like this and, given the news from Paris and the overall views of the GOP base on immigration generally, it’s not at all surprising to see Governors and Presidential candidates acting in this manner.
Given these political winds, and the reality that the events in Paris, it seems clear that the Obama Administration is going to have to come up with a way to address the security concerns and political realities that exist now. Given the state of the law, the President could chose to simply move forward with the plan and ignore the growing objections, but taking that course of action strikes me as something that is only likely to help Republicans demagogue this issue. Even before the events in Paris, polls indicated that a majority Americans opposed the Administration’s refugee plan. That opposition is only likely to have increased since Friday.
Even if it has the legal authority to go forward, the Administration would be well-advised to be more open about how it intends to screen the people it will be bringing to the United States. It also needs to better explain the screening process that is used to determine eligibility for refugee status before someone claiming that status is brought to the United States. Otherwise, this issue could turn against the President, and his party, very quickly. Those political realities notwithstanding, though, it would be a mistake to simply give in to the reactions that we’re seeing from the Governors and Presidential candidates, most of which are based in a combination of fear, which of course often leads to irrationality, and blatant political pandering. I’d like to think we’re better than that, but so far the Governors, and people like Ted Cruz, Rand Paul, Chris Christie and others, are demonstrating otherwise.
