Governors continue to line up to posture about how they’ll refuse to admit Syrian refugees to their states, but … can they even do that? According to Ian Millhiser, the answer is a clear-cut no:
As the Supreme Court explained in Hines v. Davidowitz, “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.” States do not get to overrule the federal government on matters such as this one.
Just in case there is any doubt, President Obama has explicit statutory authorization to accept foreign refugees into the United States. Under the Refugee Act of 1980, the president may admit refugees who face “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” into the United States, and the president’s power to do so is particularly robust if they determine that an “unforeseen emergency refugee situation” such as the Syrian refugee crisis exists.
This power to admit refugees fits within the scheme “broad discretion exercised by immigration officials” that the Supreme Court recognized in its most recent major immigration case, Arizona v. United States. Indeed, in describing the executive branch’s broad authority to make discretionary calls regarding immigration matters, Arizona seemed to explicitly contemplate the circumstances that face President Obama today. The United States may wish to allow a foreign national to remain within its borders, the Court explained, because the individual’s home nation “may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return.”
That’s not saying these profile-in-courage governors—which sadly include at least one Democrat, New Hampshire’s Maggie Hassan—can’t find ways to make it more difficult for the federal government to settle refugees in their states, or make life more difficult for the refugees (think of Gov. Bobby Jindal’s promise to send law enforcement after any Syrians who happen to end up in Louisiana). But they can’t flat-out refuse.
All this posturing because these governors would rather hand Islamic State terrorists a public relations and moral win rather than seem insufficiently Tough On Terror in the eyes of the most fear-prone voters.
Sign and send the petition to the White House: I support admitting Syrian refugees into the United States.