How the States Can (and Will) Hurt Refugee Resettlement

How the States Can (and Will) Hurt Refugee Resettlement

Christopher St. Clair

Monday saw a flurry of mostly Republican governors making pledges to prevent Syrian refugees from ever crossing their borders at any cost. More than two dozen governors made statements of different degrees, ranging from Nevada Gov. Brian Sandoval’s request for the government’s review of resettlement processes to Louisiana Gov. Bobby Jindal’s issuance of an executive order barring refugees from entering the state. Some of the rhetoric from senior politicians has become contentious; New Jersey Gov. Chris Christie said he would not even make an exception for five-year-old orphans, and Texas Sen. Ted Cruz argued that only Christian refugees should be let in. Only a handful of governors have made vocal their support for refugee resettlement, including Utah Gov. Gary Herbert and Connecticut Gov. Dan Malloy.

Rhetoric aside, a question remains at the bottom of all of this: do states have any legal right at all to prevent refugees from being resettled in their state. The answer? Probably not, but Americans can be assured that their state governments have a lot of tools at their disposal to make themselves as uncooperative as possible. If the states want to put up a fight, they have the power to do so, but the outcome won’t be pretty.

There are quite a few barriers for states trying to block federal immigration/resettlement policy. In fact, there’s a famous Supreme Court case that deals specifically with the subject: Hines v. Davidowitz (1941). This case came after Congress enacted the Alien Registration Act (better known as the Smith Act) a year after Pennsylvania had created its own alien registration system with stricter provisions and requirements. In a 6-3 ruling, the Court found that state systems for alien vetting or registration will always be superseded by a federal system. In the majority opinion, Justice Hugo L. Black wrote:

“That 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, was pointed out by the authors of The Federalist in 1787, and has since been given continuous recognition by this Court… The Federal Government, representing as it does the collective interests of the forty-eight states, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties.”

To make this even more clear, the 1980 Refugee Act, an amendment to the Immigration and Nationality Act, redefines the definition of “refugee” to be slightly more flexible and grants the federal government preeminence in the process of registering and admitting refugees into the country. Simply put, any refugees that the federal government decides to allow in have total autonomy and can go anywhere they wish in the United States, and the states have no explicit power to tell them otherwise.

However, the same act gives the states at least a little leverage. One subsection of the Refugee Act requires the new offices tasked with refugee resettlement to regularly consult with state and local governments in order to assess their needs and expedite the resettlement process. All the state refugee coordinators have to do to make the federal refugee coordinators’ jobs next to impossible is simply ignore them. If the state says that they can’t take any refugees, the coordinators are forced to consider it and will necessarily have a much more difficult time relocating refugees without any assistance.

States can also block federal assistance grants from reaching local governments, who often carry out the bulk of resettlement processes. As part of the program, states receive pass-through grants that they are supposed to issue to state agencies that deal with the refugee problem directly. However, the state can simply withhold the money, forcing coordinators to reconsider relocating refugees in that state. Even though the federal government can contract the work out to refugee assistance non-profits, which states could not prevent from acting, there aren’t enough organizations like this to relocate and assimilate thousands upon thousands of refugees at once; they won’t be able to do it without state assistance.

So despite the fact that states can’t explicitly block Syrian refugees from coming in, they aren’t unarmed, and if the states are willing to engage in a protracted battle with the federal government, they can certainly do it. Ironically, if more than half of the fifty states refuse to cooperate on any level, America will likely face an even worse situation: thousands of disaffected, irritated refugees angry with Americans, the situation that conservative states are trying to prevent in the first place. The refugee crisis is looming over America, and the shadow it’s casting is growing bigger and bigger, but it doesn’t look there will be any meaningful resolution here anytime soon.

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