On January 15, 2020, Judge Peter J. Messitte of the U.S. District Court for the District of Maryland issued an order granting a preliminary injunction against the Departments of State (DOS), Health and Human Services (HHS), and Homeland Security (DHS) that prevents them from enforcing Executive Order 13888 and the FY 2020 Notice of Funding Opportunity for Reception and Placement Program. That order, and the opinion that accompanies it, raises the question: When is a consultation not a consultation? Answer: when a federal judge says so.
In his opinion, Judge Messitte goes into great detail about the refugee resettlement process, but here is the thumbnail sketch: The United Nations High Commissioner for Refugees (UNHCR) identifies potential refugees for resettlement in countries that are signatories to the 1967 Protocol on Refugees (including the United States). After UNHCR identifies refugees for possible resettlement in the United States, the U.S. government vets them for admission.
The president sets a ceiling for the number of refugees to be resettled in the United States during the next fiscal year pursuant to section 207(a)(2) of the Immigration and Nationality Act (INA) .
The vetted refugees identified by UNHCR are interviewed by DHS to determine whether they are admissible to the United States under section 212(a) of the INA. If they are, they are resettled pursuant to section 207(c) of the INA under the U.S. Refugee Admissions Program (USRAP), which is managed by DOS and jointly administered by DOS's Bureau of Population, Refugees and Migration (PRM) and HHS's Office of Refugee Resettlement (ORR).
PRM's Reception and Placement Program (R&P Program) determines where in the United States a refugee will be sent, and provides arriving refugees with initial resettlement services. This R&P Program initial resettlement assistance is different "from longer-term resettlement assistance provided through" ORR.
According to PRM:
The R&P Program provides resettlement agencies a one-time payment per refugee to assist with expenses during a refugee's first three months in the United States, but the program anticipates that sponsoring agencies will contribute significant cash or in-kind resources to supplement U.S. government funding.
The R&P Program is limited to the first three months after arrival, but [ORR] works through the states and other non-governmental organizations to provide longer-term cash and medical assistance, as well as language, employment, and social services.
My colleague Don Barnett explained in January 2018 that refugees impose significant unreimbursed costs on the receiving states and localities:
The Refugee Act intended to insulate states from refugee costs. Unlike other legal immigrants, refugees are eligible for all federal welfare programs on the same basis as citizens upon arrival. (This is a lifetime entitlement for refugees who become citizens.) The Act authorized three years of federal medical support and cash support for those refugees who do not qualify for cash welfare or Medicaid. Additionally, the Act authorized federal reimbursement to the states for three years of the state's portion of Medicaid, TANF, SSI, etc. paid on behalf of each refugee resettled in the state. The ongoing cost for support of refugees on public assistance is, by far, the biggest portion of the overall cost of the program and is not accounted for in any official cost estimates.
The Act's three years of federal support was understood to be inadequate. The 1981 Select Commission on Immigration and Refugee Policy seemed to well understand the fiscal issue for a federal program that passed its costs to state and local governments, finding that "Areas with high concentrations of refugees are adversely affected by increased pressures on schools, hospitals and other community services. Although the federal government provides 100 percent reimbursement for cash and medical assistance for three years, it does not provide sufficient aid to minimize the impact of refugees on community services."
Even this admittedly inadequate federal support was to be drastically cut over the years.
The three-year time frame for federal reimbursement to states for the state contribution to federal welfare programs used by refugees was gradually shortened and halted completely by 1991, resulting in a significant cost shift to the states. For example, today about half of all refugees arriving in the last five years are in Medicaid. About a third of those who have been in the country for five years are in Medicaid — about twice the national average. Medicaid is jointly funded by the federal government and states, with the state share, on average, about 37 percent of total program costs. Denial of the authorized three years of Medicaid support means a cost shift to states that runs into the billions annually for Medicaid alone. (Public education, Medicaid, and ELL are likely the largest individual program costs that have fallen to states from refugee resettlement. Other state-funded welfare programs available, depending upon the state, include state general assistance, a state cost component for TANF and SSI, and other smaller state poverty programs.)
At the same time that federal support to the states for those refugees on welfare was trailing off, direct federal support to refugees who are not eligible for welfare was gradually reduced from the authorized three years. By 1991, this support, known as RMA (Refugee Medical Assistance) and RCA (Refugee Cash Assistance), was reduced to eight months — another significant cost shift to states and local communities.
A 1990 GAO report reviewing the history of the program found that, "With reductions in federal refugee assistance, costs for cash and medical assistance have shifted to state and local governments."
Congress has not funded this program to anywhere near needed levels. It clearly has imposed costs on states that it acknowledged are the responsibility of the federal government. A 2010 Senate report concluded that "the practice of passing the costs of resettling refugees on to local communities should not continue." [Emphasis added.]
It is not as if states and localities have no say over whether refugees should be resettled within their boundaries, however—at least on paper.
In particular, section 412 of the INA explicitly requires the federal government to "consult regularly" with states and local governments before refugees are placed and resettled in those areas, to ensure that those areas are not adversely impacted by such placement and resettlement. Specifically, paragraph 412(a)(2) of the INA states:
(A) The Director [of ORR] and the Federal agency administering subsection 412(b)(1) [PRM] shall consult regularly (not less often than quarterly) with State and local governments and private nonprofit voluntary agencies concerning the sponsorship process and the intended distribution of refugees among the States and localities before their placement in those States and localities.
(B) The Director shall develop and implement, in consultation with representatives of voluntary agencies and State and local governments, policies and strategies for the placement and resettlement of refugees within the United States.
(C) Such policies and strategies, to the extent practicable and except under such unusual circumstances as the Director may recognize, shall-
(i) insure that a refugee is not initially placed or resettled in an area highly impacted (as determined under regulations prescribed by the Director after consultation with such agencies and governments) by the presence of refugees or comparable populations unless the refugee has a spouse, parent, sibling, son, or daughter residing in that area,
(ii) provide for a mechanism whereby representatives of local affiliates of voluntary agencies regularly (not less often than quarterly) meet with representatives of State and local governments to plan and coordinate in advance of their arrival the appropriate placement of refugees among the various States and localities, and
(iii) take into account-
(I) the proportion of refugees and comparable entrants in the population in the area,
(II) the availability of employment opportunities, affordable housing, and public and private resources (including educational, health care, and mental health services) for refugees in the area,
(III) the likelihood of refugees placed in the area becoming self-sufficient and free from long-term dependence on public assistance, and
(IV) the secondary migration of refugees to and from the area that is likely to occur.
(D) With respect to the location of placement of refugees within a State, [PRM] shall, consistent with such policies and strategies and to the maximum extent possible, take into account recommendations of the State. [Emphasis added.]
To give teeth to this provision, on September 26, 2019, President Trump issued Executive Order (EO) 13888, captioned "Enhancing State and Local Involvement in Refugee Resettlement".
Section 1 of the EO states that it is the policy of the federal government to only resettle refugees in states and localities that have consented to receive refugees under the R&P Program — "with limited exceptions". Those "exceptions" may be "limited", but they hardly forestall such resettlement, whether "consent" is provided or not.
Specifically, subsection 2(b) of EO 13888 directs DOS and HHS to "develop and implement a process by which, consistent with [subparagraph 412(a)(2)(D) of the INA above], the State and the locality's consent to the resettlement of refugees under the [R&P] Program is taken into account to the maximum extent consistent with law" (emphasis added) within 90 days. It continues:
In particular, that process shall provide that, if either a State or locality has not provided consent to receive refugees under the Program, then refugees should not be resettled within that State or locality unless [DOS] concludes, following consultation with [HHS and DHS], that failing to resettle refugees within that State or locality would be inconsistent with the policies and strategies established under [subparagraphs 412(a)(2)(B) and (C) of the INA] or other applicable law. If the Secretary of State intends to provide for the resettlement of refugees in a State or locality that has not provided consent, then the Secretary shall notify the President of such decision, along with the reasons for the decision, before proceeding. [Emphasis added.]
As the foregoing demonstrates, EO 13888 provides states and localities specific say in whether they will receive refugees or not, but that say is not absolute — DOS, HHS, and DHS still get the final say. DOS just has to notify the president why, notwithstanding the fact that a state or locality has not provided consent to receive refugees, DOS has decided to do so anyway.
Notwithstanding the exceptions in subsection 2(b) of the EO, Judge Messitte describes section 1 therein as "veto power over resettlement", dismissing 2(b) in a footnote as "essentially meaningless". Specifically, he states that the plaintiffs (three of the nine resettlement agencies) are arguing that the consultative role of the voluntary agencies with non-consenting states under subparagraphs 412(a)(2)(B) and (C) of the INA would be "taken away" by the EO (an argument he ostensibly buys).
As a practical matter, however, those voluntary agencies, having a vested interest in continuing the R&P Program in their respective areas, would lobby the elected officials in states and localities to consent to the reception of refugees. And those voluntary agencies would be able, themselves, to consult with ORR and argue that states and localities should be forced to receive refugees (under the procedure in subsection 2(b) of the EO), notwithstanding their refusal to consent.
Respectfully, if the federal government can simply place refugees wherever it wants, notwithstanding the objections of states and localities, the consultations required under paragraph 412(a)(2) of the INA are, in the judge's words, "essentially meaningless". Even under the framework of EO 13888, the federal government gets the final say in where refugees will be placed, but under our "federal" system, the several states should (and by statute through the consultation process, do) get a say. EO 13888 simply recognizes that fact.
Judge Messitte makes much of the language of clause 412(a)(2)(C)(ii) of the INA, which directs ORR to provide a mechanism for representatives of local affiliates of voluntary agencies to meet with state and local representatives "to plan and coordinate in advance of their arrival the appropriate placement of refugees among" those states and localities:
As to States and Governments that refuse to give written consents, there will be no consultation, no meetings with the Resettlement Agencies, not just "recommendations." Those State and Local Governments can simply give or withhold their written consents to the resettlement of refugees within their borders. If they do not consent — apparently for any reason or for no reason — there will be no resettlement in that entire State or in that local community. Resettlement Agencies will be totally sidelined. In other words, as the screens in e-sports inevitably register: "Game Over".
The court, however, again dismisses subsection 2(b) in EO 13888, which allows for the placement of refugees even in those states and localities that do not consent, in this analysis. Under the terms of the EO, the clause in question would not be a dead letter. In fact, under the judge's logic, the system is turned on its head. ORR can consult with the states and localities all it or they want — and then simply ignore their objections. That is "Game Over" for the states and localities that will end up footing a hefty bill.
Finally, I note that Judge Messitte focuses on "a potentially insuperable Constitutional barrier" that "looms" (underlining his): "The power to admit or exclude non-citizens is 'exclusively' federal in nature." He continues:
Making the resettlement of refugees wholly contingent upon the consents of State and Local Governments, as the veto component of the proposed Order would have it, thus raises four-square the very serious matter of federal pre-emption under the Constitution. It is hard to see how the Order, if implemented, would not subvert the delicate federal-state structuring contemplated by the Refugee Act.
Actually, and again respectfully, it is hard to see how the EO does not implement the terms of paragraph 412(a)(2) of the INA. States and localities have an opportunity (if not a right) thereunder to be consulted with respect to the development and implementation of policies and strategies for the placement and resettlement of refugees within the United States.
Refugee resettlement is unlike any other path to entry into the United States, because it is the federal government that is bringing the alien into the United States and placing him or her therein. Lawful permanent residents, nonimmigrants, and even aliens illegally present can go wherever they want — subject to federal law, if any. States and localities lack the direct authority to control the movement of all those other than refugees who are here legally (and under Arizona v. U.S., illegally), but the INA, recognizing this crucial difference with respect to refugees and their placement, does give the states and localities a say.
How much say is not specified in the statute, and is therefore a question for federal executive branch discretion, to be answered on a spectrum from "we have consulted you and have decided to do what we had planned anyway" to "you have the right to say no." In this instance, EO 13888 is far more on the latter side than the former, but if a future president were to choose the opposite, the states and localities would have no recourse, because there is no right of review. It is not the states and localities that have the final say, it is the federal government (even absent section 2(b) in the EO), because they give effect to paragraph 412(a)(2) of the INA.
The only way that this would really be an issue is if every state and locality refused to consent to the placement of refugees (an extremely unlikely outcome that would call the country's interest in refugee resettlement into question in and of itself). But even then, section 2(b) of EO 13888 would protect against the dangers Judge Messitte claims "looms" in that EO — the secretary of state would just make the placements, after notification to the president that there is no other choice.
As an aside (but a fairly significant one), it is curious that such "potentially insuperable Constitutional barrier[s]" are never" loom[ing]" when states and localities erect sanctuary policies. In essence, those policies are hundreds (if not thousands) of mini-immigration policies that "raise four-square the very serious matter of federal pre-emption under the Constitution." This is especially true as it relates to 8 U.S.C. § 1373(a), which states:
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. [Emphasis added.]
That is a federal law, dealing with a strictly federal issue — immigration. But how many local government entities have laws that prohibit such information sharing? Perhaps the Department of Justice should be filing more suits challenging those provisions with Judge Messitte.
One final point: Judge Messitte plainly does not like the Trump administration's refugee policies. He notes that "Canada now accepts a greater number of refugees for resettlement ... than does the U.S., which historically has accepted the most" (a contention that my colleague, Nayla Rush, countered in October 2019), and contrasts the current refugee ceiling (18,000 for FY 2020) with the 110,000 ceiling set by President Obama in FY 2016. For a third time, respectfully, these facts (assuming they are true), are utterly irrelevant to the issues in the case, except to paint the Trump administration in a bad light.
Further, the judge ignores Rush's statement that "the United States remains a strong supporter of the UNHCR; in fiscal year 2018 alone, the U.S. contribution to the UNHCR 'reached a historic high of nearly $1.6 billion to support UNHCR's response to historic levels of displacement and humanitarian need.'" It also ignores related analysis from my colleague Steven Camarota that refugee resettlement in the United States may not be the most cost-effective method of helping those in need of protection.
Finally, it makes no note of the fact that there are hundreds of thousands of aliens currently applying for asylum in the United States — each one of whom must satisfy the refugee standard in section 101(a)(42)(A) of the INA.
It is not as if the United States is not more than doing its part in taking care of the world's refugees — just perhaps not in the manner that Judge Messitte, and the plaintiffs in the case, would like.