Reality Check – State Governors Have No Authority to Exclude Syrian Refugees

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In the aftermath of the recent terrorist attacks in Paris, there has been widespread debate as to whether the United States should accept Syrian refugees.  Although the investigation into the Paris attacks is ongoing, it appears that some of the terrorist involved in the attack posed as refugees in order to enter the country.  The fear of a similar “Trojan Horse” attack in the United States has clearly struck a nerve and in some respects, divided the Country. Some argue that the United States was founded by immigrants, has a long history of welcoming and protecting refugees and should not let reflexive and irrational fear influence our social philosophy or domestic policy. Citing the Paris attack, others argue that until we have an effective and proven method of vetting Syrian immigrants, we should not accept them within our borders.

A number of state governors have recently joined this increasingly heated debate.  For instance, Texas Governor Greg Abbott and Massachusetts Governor Charlie Baker, have explicitly stated that their respective states will not accept any more Syrian refugees.  Louisiana Governor Bobby Jindal has gone so far as to issue an Executive Order to the State’s executive agencies, requiring the agencies to use all lawful means to prevent the resettlement of Syrian refugees within Louisiana. In contrast, Pennsylvania’s Governor Tom Wolf has welcomed the resettlement of Syrian refugees within the State.

Lost among the rhetoric as to whether the United States should or should not accept Syrian refugees, is the fact that state governors have absolutely no legal authority to prevent Syrian refugees from settling within their respective borders.  Indeed, the law on this point is crystal clear.   The United States Constitution and federal law vests all authority for accepting foreign refugees with the federal government, not the states. Any action taken by states to prevent refugees from settling within their borders, whether by executive order (as in the case of Governor Jindal) or by legislation would violate the United States Constitution and almost certainly would be struck down by a federal judge.

Article I, section 8 of the United States Constitution provides that the federal government (not state governments) shall have sole authority to “establish a[] uniform Rule of Naturalization.”  This provision of the Constitution has been broadly construed by the United States Supreme Court and has been interpreted to preempt the majority of state laws dealing with immigration. In other words, state governors and legislators are not allowed to pass or enforce laws that deal with immigration or naturalization.  This includes laws seeking to keep refugees out.

The United States Supreme Court addressed this issue a few years ago when Arizona attempted pass and enforce laws designed to be tough on illegal immigration.  Justice Kennedy, writing for the majority in Arizona v. United States, cogently explained the Constitutional authority and rational for vesting the federal government (as opposed to the various states) with the sole right to regulate immigration:

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.  . . . This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U.S. Const., Art. I, § 8, cl. 4, and inherent power as sovereign to control and conduct relations with foreign nations. . . .

The federal power to determine immigration policy is well settled.  Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. …

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate states.

In light of the Constitutional authority granting the federal government sole authority to deal with immigration, any state law or executive order seeking to keep foreign refugees out would be preempted by federal law.  Specifically, any attempt by states to exclude refugees would be preempted by the federal Refugee Act of 1980, which permits the President to admit refugees facing “persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

So what does all of this mean for Syrian refugees?  It means that if state governors actually attempted to follow through with their threats and bar Syrian refugees from entering their states, their actions would be illegal and certainly overturned by the federal courts.

James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/

 

Photo Credit: Kristy Pargeter, Dreamstime Stock Photos

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