On November 20, 27 GOP governors signed onto a letter calling on the Obama administration to suspend the resettlement of Syrian refugees in the United States. While our own governor, Charlie Baker, declined to sign the letter, he has been vocal about his concerns over the federal government’s refugee vetting process. The problem is that both responses—that of the 27 GOP governors and of Baker—ignore legal and procedural truths about refugee resettlement. In fact, governors cannot refuse to resettle Syrian refugees in their states, and the security screening measures already in place are exceptionally robust.
In the first instance, immigration law has long been recognized as exclusively the province of the federal government, which has broad discretion when it comes to immigration matters, primarily for reasons of foreign policy and ensuring that fragile international relations aren’t upset by the actions of 50 different state executives, acting independently. In the case of refugee resettlement, the Refugee Act of 1980 prevails. In this act of Congress, the president was granted the authority to admit into the United States refugees who suffer “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” The Syrian families and children we see on the front page of the newspaper, including the haunting image of the Syrian toddler?lifeless on a Turkish beach, are these very people. They have faced, and are facing, persecution—including harm, torture, and even death—at the hands of the Syrian government and ISIS.
An estimated 12 million Syrians have fled their homes since the outbreak of civil war in 2011, and 4 million of them are seeking safety from this horrific violence in neighboring countries, Europe, and, yes, the United States. The work of resettling these refugees in the United States has fallen to the federal government. And while the federal government is required to “consult” with states in the coordination of refugee resettlement, that is all it is required to do. While state governments play a role in this resettlement—working with the federal government, the State Department’s Bureau of Population, Refugees, and Migration, and nine national agencies to determine where in their state to resettle refugees—they do not have veto power once a refugee is admitted. In short, the executive branch’s broad and definitive authority to grant admission to refugees simply cannot be undone by the actions of one—or even two dozen—state governors.
But that’s not all. A line of Supreme Court cases further precludes state governors from acting to prohibit the free movement of noncitizens inside the United States. The Supreme Court has made clear that a noncitizen, once admitted to the United States, has the privilege of “entering and abiding in any state,” and being “an inhabitant of any state.” That is, once a refugee is admitted and resettled in, say, Pennsylvania, where Governor Wolf has said Syrian refugees are still welcome, Texas cannot refuse to allow the same refugee to travel to, work in, or live in its cities or towns. Any obstacles to this free movement of noncitizens, including restrictions on access to employment or other benefits, would be a violation of equal protection under the Fourteenth Amendment, and one that could not withstand Constitutional muster.
Finally, although legally without a leg to stand on, state governors have been neither shy nor quiet in voicing their desire to shut down Syrian refugee admissions. And it is worth addressing the concerns they are raising. Again and again, these governors, Baker among them, cite security concerns as paramount. But their cries of terrorist invasion ignore the fundamental realities of refugee screening, admission, and resettlement. Since the outbreak of the civil war in Syria in 2011, the United States has admitted just 2,000 Syrian refugees. By contrast, Germany—a country one-fifth the size of the United States—has admitted nearly 100,000. This stark contrast is due to a number of factors, but one primary reason is the notoriously rigorous security and background checks required of all refugees seeking admission to the United States. Refugees seeking admission to the United States must first apply through the United Nations High Commission for Refugees. They are subject to FBI background checks and further clearances run through the Department of Homeland Security, the Department of Defense, and other agencies. They must provide biographical information, fingerprints, and proof of identity and submit to in-person interviews. Indeed, it is far easier to obtain a visitor visa than it is to be processed and accepted for resettlement as a refugee. The practical effect of these security hoops is that the total processing time for a refugee seeking admission to the United States routinely stretches to two years or longer.
More than two dozen state governors would like to close the door on refugee families and children fleeing the very same terror that we say we stand so firmly against. This position is not only morally inexcusable, but also legally indefensible. This position also profoundly fails to recognize the stringent security clearances already in place for seeking admission to the United States, especially for refugees. In the midst of a contentious election season and growing partisanship across the country, our own governor and more than two dozen of his colleagues have ignored legal and procedural realities in favor of sound bites stoked by fear and craven political pandering.
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