When their heft is needed most, the thirty-one states that resisted Obama administration refugee settlement directives have an opportunity to assure the success of President Trump’s new executive order to pause refugee entry and settlement. Now that state demands for greater security vetting hang in the balance between the courts and the president, state policy and legal arguments may tip the scales.
What these states should already realize is that a coalition of state leaders gives a megaphone effect to separate state declarations. And when a block of states joins to make a united statement, Washington D.C. listens. The courts also take note. From battling the EPA, to lobbying for same-sex marriage, to challenging Obamacare, coordinated states have waged highly effective tactical campaigns.
Texas stepped up to file an amicus brief in support of President Trump’s original ‘Travel Ban’ Executive Order in the Ninth Circuit Court of Appeals. The brief affirms the propriety of both executive orders when recognizing foreign affairs-based executive authority “over the admission of aliens into the country.” If questions persist, the Texas brief explains congressionally delegated authority given the president in the Immigration and Nationality Act to “temporarily suspend the admission of specified classes of aliens.” Friend-of-the-court briefs like this are a critical part of the legal debate but these principles must also be translated into the talking points that inform public forums.
From Massachusetts to Idaho and Maine to Arizona, a wide majority of states have registered degrees of resistance to Obama Administration efforts to place admitted refugees. When states complained of the inability to vet newcomers from countries that have little to no reliable government registration apparatus they acted on Tenth Amendment duties to defend health, safety, and welfare prerogatives. The late Justice Scalia underscored constitutional framers’ orientation to inherent state interest in alien exclusion in his Arizona v. United States dissent with this passage written by James Madison to Edmund Randolph: “[T]wo of the Constitution’s provisions were designed to enable the States to prevent ‘the intrusion of obnoxious aliens through other States.’”
Justice Scalia also called the “power to exclude from the sovereign’s territory the people who have no right to be there” a defining characteristic of sovereignty. He cited Vattel’s 1758 treatise on the Law of Nations where sovereignty was equated with the power to “forbid the entrance of his territory either to foreigners in general, or in particular cases, according as he may think it advantageous to the state.”
States that have registered complaints about the disregard for required federal consultation on refugee settlement and those who have voiced overriding security concerns now have a champion in the White House. The stage is set for these states to defend and define legitimate interests.
While recorded concerns over refugee policies vary by state, after overarching security priorities, they generally include long-term support costs, scarce educational resources, and assimilation issues.
Islamic refugees that are settled in concentrated communities often demonstrate a unique antipathy to American traditions and culture. American cities should use the pause to assess settlement policies and work to carefully pace new refugee admissions according to assimilation indicators. Europe’s experiences with highly concentrated Islamic enclaves should serve as a graphic warning to American communities.
States may think that the president can go it alone but early court setbacks due in part to dubious judicial assignment of constitutional due process and religious discrimination rights to aliens not on American soil indicate that the battle must be joined. Not only have the courts invented grants of standing but these extensions of constitutional rights across U.S. borders undermine the very basis for sovereignty. The emotional rationale underlying these arguably erroneous judicial notions has power to persuade the media and the public.
There is no better time for states to correct the record by injecting a list of the poignant local harms and balance of power violations into the public discussion.
Many respected legal scholars agree that the president’s executive order on pausing refugee entries and settlement stands on solid legal ground and most Americans support the moral imperative to better scrutinize refugee qualifications for entry. Yet unfounded court reasoning is still scoring wins in the war of headlines. The states are in the best position to offer safety, security and culture-based arguments to win the debate.
Karen Lugo is a constitutional law attorney with emphasis in Tenth Amendment state authority studies.