Sorry, Governors: The Decision To Let In Refugees Isn't Really Up To You

The Constitution is going to get in their way.

A wave of governors rattled their sabers Monday in response to the Paris terrorist attacks, vowing to block Syrian refugees from settling within their states. But those threats rest on shaky legal ground.

The Supreme Court has repeatedly reaffirmed that the Constitution vests the federal government -- and not the states -- with "power over immigration, naturalization and deportation."

"When the national government by treaty or statute has established rules and regulations touching the rights, privileges, obligations or burdens of aliens as such, the treaty or statute is the supreme law of the land," wrote Justice Hugo Black in the 1941 case Hines v. Davidowitz. "No state can add to or take from the force and effect of such treaty or statute."

The key statute here is the Refugee Act of 1980, as noted by ThinkProgress' Ian Millhiser. That 1980 law declared it to be "the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands." It gave the president broad power to handle an "unforeseen emergency refugee situation," such as one involving "grave humanitarian concerns."

A Syrian woman holds her baby after their arrival on the Greek island of Lesbos this month.
A Syrian woman holds her baby after their arrival on the Greek island of Lesbos this month.

That sounds a lot like the situation of Syrian refugees fleeing deadly violence in their homeland. And it is President Barack Obama whom Congress empowered to direct efforts to help them.

Of the more than a dozen governors opposed to the idea of admitting Syrian refugees, only Florida’s Rick Scott (R) publicly admitted his "understanding" that "the state does not have the authority to prevent the federal government from funding the relocation of these Syrian refugees to Florida even without state support."

Legal scholars and advocates were less reticent, and they spoke with largely one voice on the issue.

"The decision to let a particular person into the United States or exclude them is up to the federal government," said César Cuauhtémoc García Hernández, a visiting professor at the University of Denver's Sturm College of Law who writes extensively on immigration law. "There's no question about that."

"The states have no power whatsoever to restrict travel into their territories by anyone," concurred Stephen Legomsky, former chief counsel for the U.S. Citizenship and Immigration Services agency and now a law professor at Washington University School of Law. "That law has been clear for more than 100 years."

Legomsky should know. The Supreme Court cited his work in 2012 when it decided Arizona v. United States, the federal government's partly successful challenge to Arizona's restrictive S.B. 1070 law.

"The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens," wrote Justice Anthony Kennedy.

Since the Paris terror attacks, the Obama administration has reaffirmed its plan to admit 10,000 refugees in 2016.

State Department deputy spokesman Mark Toner told reporters in a briefing on Monday that department lawyers were looking into the legal question of whether states could refuse Syrian refugees. He said the department takes the governors' concerns seriously.

"The way we're looking at this right now is we believe it's incumbent on us to sit with them, consult with them, explain to them the process, the stringent security review that goes into accepting these refugees," Toner said, according to a transcript.

Assuming the governors weren't just engaging in political posturing, it's unclear how they planned to block Syrian refugees.

They could, in theory, refuse to provide housing support and other state services or decline to pass along money they receive from the federal government to refugee resettlement organizations. But that could open them up to legal challenges.

It would also be difficult -- if not impossible -- to accept some types of refugees but not others.

Refusing to accept "certain types of refugees" would be "the most problematic because it would basically be discrimination," said Jen Smyers, associate director for immigration and refugee policy with the Church World Service. "There would be a huge constitutional challenge for this."

Judy Rabinovitz, deputy director of the Immigrants' Rights Project at the American Civil Liberties Union, agreed that state efforts targeting a specific subset of refugees would be "legally vulnerable."

Specifically, once a refugee is cleared for admission into the United States, federal law renders his or her presence lawful, and under the 14th Amendment, the individual is protected against a blanket policy that singles out people based on national origin.

As a practical matter, there would be no way for states to keep Syrian refugees from moving within their borders after being placed elsewhere. Many refugees are seeking to join family members already in the U.S. Michigan, for instance, has a large Syrian population. Michigan Gov. Rick Snyder (R) was among the governors threatening to block Syrian refugees.

But refugees who moved to another state might have trouble accessing the services they need, Smyers warned.

"For them to just shut down resettlement would be pretty catastrophic, especially for refugee families who are seeking reunification," she said.

There's also the question of whether barring some of the most vulnerable people from the U.S. is morally right -- the line of argument that Obama took on Monday. He asked people to "remember that many of these refugees are the victims of terrorism themselves."

"That's what they're fleeing," he said. "Slamming the door in their faces would be a betrayal of our values. Our nations can welcome refugees who are desperately seeking safety and ensure our own security. We can and must do both."

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