With the mainstream media consistently reporting that Governors are planning to block the President’s Syrian refugee resettlement plans, two main camps have emerged in recent days. Unsurprisingly, they’re both missing the most important point.
On the one hand, there are people who say that states can’t do anything about the President’s plan. On the other hand are people who say that states not only can do something about it, but must.
There are other variations of these two, and even a mix of them. But all of them have missed something essential. What states “can” and “can’t” do might not even matter. And that’s how the “father of the Constitution” expected things like this to play out.
I’ve been watching this develop, especially with the 10th Amendment being referenced so often. In a nutshell, here are answers to some important questions:
(1) How does the refugee resettlement plan work?
If you don’t understand how things work, there’s no way to formulate a strategic response to them. So here’s the short version.
In general, the Federal DHS starts the process with their own screening (or lack thereof, depending on who’s talking about it). Then the Federal State Department coordinates resettlement of those admitted. In most situations, a non-governmental organization (NGO) working under agreement with the Bureau of Population, Refugees, and Migration (never heard of them before? You’re not alone, but they do have a Facebook page) then agrees to be the refugee’s sponsor. Once details are worked out, PRM arranges travel and the NGO meets them at the local airport. In most situations, state and local governments aren’t involved.
(2) I hear some states are going to put a stop to this, is that true?
Georgia Gov. Deal issued an executive order “directing state agency heads to prevent the resettlement of Syrian refugees in Georgia.”
Alabama Gov. Robert Bentley said he “will oppose any attempt to relocate Syrian refugees to Alabama through the U.S. Refugee Admissions Program.”
Arizona Gov. Ducey is claiming his state’s “rights under federal law” to “consult” with federal officials over refugee placement.
Tennessee state House GOP Caucus Chairman Glen Casada, (R-Franklin) wants to ramp things up. “We need to activate the Tennessee National Guard and stop them from coming into the state by whatever means we can,” he said.
In most situations, action has been limited to public statements, so far. It remains to be seen if this is mostly just political grandstanding, or the beginning of a true states-vs-feds standoff.
(3) Is the media telling the truth about what Governors are saying?
While the mainstream media has generally primed the pump about states refusing refugees, in many situations they’ve either misreported what’s going on, or simply hyped it up. Take New Jersey Governor and former federal employee Chris Christie, for example.
On Monday, the Philadelphia Enquirer reported that Christie “won’t accept Syrian refugees in NJ.” The Associated Press repeated the claim, saying that “New Jersey will no longer accept Syrian refugees in the wake of last week’s Paris attacks.” Salon claimed that Christie joined a “growing list of Republican governors who have declared their states Syrian refugee free zones.”
Now don’t be surprised, but the media isn’t all that honest. While it’s harder to be much worse on the Constitution than Christie (his hatred for both the 4th and 10th Amendment, for example), his letter to Pres. Obama tells a far different story than what the media has told you.
“I cannot allow New Jersey to participate in any program that will result in Syrian refugees – any one of whom could be connected to terrorism – being placed in our state,” he wrote [emphasis added].
Christie also said he would direct the New Jersey Department of Human Services not to participate in resettlement activities. And he requested that nongovernmental organizations assisting with resettlements notify state authorities if they resettle anyone from the country.
This is a far cry from a “refugee free zone.”
Texas Gov. Greg Abbott did say in his letter to the President that Texas “will not accept any refugees from Syria,” but couched that in terms of noting that the Texas Health & Human Services Commission’s Refugee Resettlement Program would “not participate in the resettlement of any Syrian refugees in the State of Texas.”
The situation isn’t much different with Gov. Jindal of Louisiana, and most other reports. In general, the media has it mostly wrong.
(4) Isn’t the federal government fully in charge of immigration policy anyway?
Some people, like the rabid partisan nationalist Ian Millhiser of ThinkProgress have insisted that immigration is 100% a federal issue, which is interesting in light of reports from ThinkProgress that give support to so-called “sanctuary cities” acting to partially thwart some federal immigration policies.
Others, like Judge Andrew Napolitano of Fox News have said that states “can’t really interfere with what the federal government does,” with Syrian refugees.
At Fortune, Steven Dennis writes that the “power over immigration under the Constitution rests with the federal government.”
Louisiana Senator and Gubernatorial candidate David Vitter said in a recent campaign ad that “as governor, no Syrian refugees will enter Louisiana.” While it’s possible that Vitter has a plan to seal the state borders, it is odd to see a politician claim his state has authority over immigration laws in his state, when in recent months he has been pushing federal legislation to stop states and “sanctuary cities” from “ignoring our nation’s immigration laws.”
Like Millhiser and ThinkProgress from the left, Vitter and others from the right are not the most reliable sources of Constitutional education, as their views over who can do what on immigration change based on political circumstances.
In 2010, I wrote an article which noted that while “naturalization” is a power expressly delegated to the federal government in the Constitution, “immigration” was not, suggesting that states do have a constitutional role over who migrates into their territory. In response, a leading Constitutional scholar admitted that previous attempts to claim immigration was a federal power under the Commerce Clause were wrong. He determined instead that “Congress’s power to define and punish . . . Offenses against the Law of Nations included authority to define immigration rules and punish those who violated them.”
(5) What about the 10th Amendment?
As a reminder, the 10th Amendment is a legal “rule of construction” which Thomas Jefferson considered the bedrock of the Constitution. It reads:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In short, it simply means that the federal government can only do what has been delegated to it in the Constitution. And nothing more.
That goes for immigration too.
(6) OK, but that’s still not clear. Can states actually DO something?
The question is really less about whether or not states “can” or “can’t” take action on this issue (and many others, actually), but more about whether or not they will.
In fact, that’s just how James Madison expected things to play out.
In Federalist #46, he gave us a blueprint for how to end federal programs through actions by individuals and states. This included four main responses.
- Protest by the People – to show their opposition to the federal act.
- Outspoken Governors – to bring attention to the issue.
- Non-compliance – Madison recommended a “refusal to cooperate with officers of the Union.”
- State law – He expected “legislative devices” to be used to strategically counter and thwart federal acts.
Used in various states simultaneously, Madison said that this would be an extremely effective method to bring down federal acts. And this was at a time when the federal government relied on just the federal government to implement federal programs.
He also noted that this strategy could be used for federal acts that were “unwarrantable” or “warrantable,” but unpopular. That is, constitutional or not, federal acts can be brought down without waiting for the federal government to end them.
Additionally, even the Supreme Court has repeatedly upheld Madison’s approach by validating the principle that the federal government cannot require the states to help them enact or enforce federal acts or regulatory programs.
This is something that almost everyone, from left to right (including Millhiser) agrees with.
(7) So How Does This Play Out in Practice?
If Georgia state agencies really do stop Syrian refugees from entering the state, they’ll likely face a quick lawsuit from the federal government, and an almost certain injunction from a federal judge demanding that they stop the practice immediately.
Would Gov. Deal, a former federal representative, flat-out defy a federal court order?
Will Tennessee state rep. Casada convince Gov. Haslam to defy his friends in Washington D.C. and activate National Guard troops to keep out Syrian refugees?
“Tennessee is a sovereign state. If the federal government is forsaking the obligation to protect our citizens, we need to act,” Casada said during a phone interview with The Tennessean on Tuesday.
His colleague, Tennessee state rep. Rick Womick, is considering legislation to take back control of the state’s refugee resettlement program from Catholic Charities of Tennessee. The state ran the program until 2008.
If they pass such a law, Tennessee could certainly rely on Madison’s advice, along with the Supreme Court’s “anti-commandeering doctrine,” to simply refuse participation with the refugee resettlement program.
If you’ve read this far, you know there’s no quick and easy answer. It’s unlikely that Congress is going to be able to stop Pres. Obama’s plan. And federal agencies aren’t going to stop it either.
In the states, it’s possible, even if unlikely, that governments will physically impede the resettlement program, or activate National Guard troops to round up people placed by the feds. And if they do, it’s most likely that the federal Supreme Court will agree with the federal government that the federal president has sole authority over this issue.
On the other hand, states can, without question, refuse to participate without any real threat of a serious legal challenge (Still, do not trust the federal courts here either). But the logistics of this program, unlike most other federal programs, is that state governments are not an essential part of it all.
But if multiple states take action like Womick has suggested, this would be far more likely to have a serious impact on the federal government’s ability to resettle refugees within the United States.
In response, even if the unlikely happened, and these acts were challenged – and defeated – in federal court, the interim period would see a complete cessation of resettlement in states that took this course.
What’s more important to how this will play out is not what states “can” or “can’t” do in theory. But what they’re willing to do in practice.
AN ADDITIONAL THOUGHT
If what appears to be all four steps in James Madison’s plan are actually being put into effect, it’s my personal view that the federal government doesn’t stand a chance.
I don’t think that’s likely. But, either way, it’s pretty easy to see today how just the possibility of that happening is causing serious issues for those in power.
One might be inclined to ask why Governors haven’t been doing this for years in response to federal gun control or NSA spying. Right or wrong as a policy matter, effective or not, maybe this episode will teach a few of them that saying “NO” to federal programs is an extremely popular platform.
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