Rule of law: Federal judge blocks Trump refugee policy allowing state, local vetos over resettlement

It’s a temporary injunction, but don’t expect this case to fare any better for the White House after a full hearing. Federal judge Peter Messitte issued the TRO late yesterday enjoining states and localities from vetoing refugee resettlement under a new policy from the Trump administration. Messitte made clear in his order that he believes that the policy violates the intent and plain statutory language of Congress in the Refugee Act of 1980, and that federal authority over immigration and refugee policy trumps state and local rights, so to speak:

State and local officials cannot block refugees from being resettled in their jurisdictions, a federal judge ruled Wednesday, finding the Trump administration’s new refu­gee policy is likely to be “unlawful” and “does not appear to serve the overall public interest.”

U.S. District Judge Peter J. Messitte of Maryland temporarily halted President Trump’s executive order requiring governors and local officials nationwide to agree in writing to welcome refugees before resettlements take place in their jurisdictions.

“Giving states and local governments the power to consent to the resettlement of refugees — which is to say veto power to determine whether refugees will be received in their midst — flies in the face of clear Congressional intent,” Messitte wrote in a 31-page decision.

What intent was expressed in the Refugee Act? Messitte’s correct in that Congress made it pretty explicit, emphasizing that they passed the act “to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted,” emphasis mine. While Messitte then launches into a lengthy analysis of the definition and history of refugees, this is his key point. Congress passed the Refugee Act in 1980 to bring US policy on refugees into line with the UN’s High Commission on Refugees (UNHCR), and Congress did so by statute. The express purpose of this statute was uniform implementation of what is clearly a federal policy, showing that Congress not only didn’t plan on state and local vetoes, they wrote the statute to keep them from being employed.

The fact that this is a statutory provision makes the policy change untenable. Had Congress never passed the law, succeeding administrations would have had greater leeway in allowing states to opt in or out of resettlement. However, EOs and administration policies have to work within statutes rather than outright conflict with them. While the Refugee Act allows for certain efforts by states to work with the federal government on where refugees will be resettled in their jurisdictions, they do not have the authority to veto their resettlement altogether. If the Trump administration wants to create that kind of mechanism, they would have to convince Congress to repeal the Refugee Act — which isn’t going to happen this year, at the very least.

Messitte makes use of Justice Robert Jackson’s three-part test in Youngstown to deny Trump the authority to override the clear language in the act. “When the President takes measures incompatible with the expressed or implied will of Congress,” Jackson wrote, “his power is at its lowest ebb[.]” Trump’s EO would clearly violate not just the expressed will but also the mechanisms that Congress put in place for state and local input into resettlement decisions:

That clearly violates both the letter and intent of the law. It’s not even a very close call, especially in the context of Youngstown, where the judiciary’s role reaches its own apex in the third case. One has to suspect that even most of Trump’s appointees to the bench would come to the same conclusion as this Clinton appointee did. To rule otherwise would make Congress impotent and clear statutory language completely unreliable.

Don’t expect this policy to get resurrected on appeal — at least not in its current form. The administration might be able to get its way by further restricting the entry of refugees — it’s down to 30,000 a year now, from a peak of 100,000 during the Obama administration — or by using the consultations to allow for soft vetoes instead. Either way would at least technically comply with the Refugee Act, or at least be difficult to litigate.

However, all of this raises another important point. If state and local governments do not have a veto over federal refugee resettlement decisions, then it’s equally clear that they don’t have a veto over federal immigration decisions and policy, either. Messitte’s TRO has no precedential force, of course, but the same logic applies. It might be well worth pursuing this on appeal to establish the precedent and then apply it to the “sanctuary cities” movement that declares federal authority to enforce immigration law moot within inferior jurisdictions. That might not have been the real intent of this policy, but it might be the most face-saving outcome for the White House.