By: James Simpson | The Federalist
Last March, the Thomas More Law Center (TMLC) initiated a lawsuit against the federal government on behalf of the Tennessee legislature, charging the refugee resettlement program imposes unconstitutional unfunded mandates, requiring states to pay for resettlement whether they participate in the federal program or not. For a year, the sides engaged in legal maneuvers while the judge dawdled.
This March, despite multiple Supreme Court rulings that the federal government cannot compel states to pay for unfunded federal mandates, the judge dismissed the case. He claimed the state of Tennessee, while fully responsible for financing the state’s share of resettlement program costs, did not have standing to bring the suit.
Many aspects of the refugee resettlement program force states and local governments to continue to accept refugees even if they choose not to participate in the program, and pay for a laundry list of services to those refugees once resettled. The lawsuit focused specifically on the requirement for the state to pay exorbitant Medicaid costs or risk losing up to $7 billion in federal Medicaid reimbursements, an amount equal to 20 percent of the entire state budget.
In his 43-page decision, the judge ruled that, according to Tennessee law, only the Tennessee attorney general had the authority to sue, but would not have standing anyway because the state had not first attempted to gain relief through an administrative appeal directly to the federal government. (Tennessee’s attorney general and governor had declined to back the suit.) Thus the state would be put in the impossible position of having to first lose some or all of that $7 billion before it could sue.
The case demonstrates how convoluted the refugee resettlement program is, and despite the enormous burdens it places on state and local taxpayers, has remained resistant to successful challenge.
Sticking It to Tennessee for Obeying the Law
The day after the decision, the Center for Immigration Studies held a discussion at the National Press Club, “Should States Be Able to Opt Out of the Refugee Resettlement Program?” In attendance were CIS Executive Director Mark Krikorian, CIS refugee resettlement expert Don Barnett, TMLC President Richard Thompson, and St. Cloud, Minnesota, City Councilman Jeff Johnson.
Remarking on the ruling, Thompson stated, “The judge basically backed off because it was too controversial and ruled on the basis of standing of the legislature to bring the lawsuit, and standing of some very courageous individual legislators who put their name in the lawsuit as well.”
“It reminds me of the tale of two legislatures,” he said. “On the one hand, you have the General Assembly of Tennessee taking a strong stand, believing that the government is wrong, and yet not violating the rule that the government has set. They go into court through the due-process aspects of the case and make a case that this government is violating the Tenth Amendment and the Spending Clause. On the other hand, you have the tale of a California legislature who says I don’t give a d-mn what the federal government says and they go ahead and violate whatever rules that they feel that they can get away with.”
Thompson said he believed the decision had numerous holes, and if the plaintiffs were willing, he would appeal, as far as the Supreme Court if necessary.
Refugee Resettlement Affects Communities
The panel focused on the lawsuit and an excellent analysis of the issue published in January by Don Barnett. Barnett noted, “When the Obama administration raised the refugee admission quota for fiscal year 2017 to 110,000 – a really great raise over his average. His average is probably about 75,000 a year. So it was raised to 110,000 on the way out. New Jersey, Maine, Kansas, and Texas formally withdrew from the program. Actually, however, this is a program that states can never leave.”
Johnson has seen refugee resettlement problems played out in his community up close. With a rapidly expanding Somali refugee population, St. Cloud is beset with a crime rate 92 percent higher than the state average, the prospect of terrorism (last September a Somali Muslim refugee stabbed 10 people at the local mall before being shot and killed by an off-duty policeman), and cultural clashes.
Johnson gained notoriety last October when he proposed a resolution declaring a moratorium on refugee resettlement to St. Cloud. Despite strong support from city residents, the council overwhelmingly rejected Johnson’s proposal.
Don’t Want to Run a Refugee Program? Tough
The 1980 Refugee Act created the U.S. Refugee Assistance Program, which uses private, tax-exempt organizations called “voluntary agencies” or “VOLAGs,” and a network of subsidiaries, called “affiliates,” to resettle refugees within the United States. These organizations are paid by the head to resettle refugees. The act requires consultation with state and local governments before refugees can be resettled, and allows states to opt out of the program altogether.
The act also promised to cover the state portion of federal welfare program costs for refugees for three years. This was an important factor in passing the act because refugees use welfare at rates much higher that of U.S. citizens or even other immigrant groups.
Recent court decisions in Texas and Alabamahave questionably declared the “consultation” provision advisory only. VOLAGs largely ignore it anyway. Furthermore, by 1991 the federal government had stopped providing reimbursement to states for the state share of refugee welfare costs.
Finally, in 1995, the Office of Refugee Resettlement (ORR) of the Department of Health and Human Services created a regulation (45 CFR 400.301) allowing VOLAGs to take over the role of state governments in refugee resettlement when those states choose to drop out of the program.
States that opt out become known as “Wilson-Fish“ states, named after a 1984 refugee law proposed by Reps. Pete Wilson and Hamilton Fish that suggested alternative ways for refugees to receive welfare. The regulation, however, is not based on the actual law. ORR essentially invented it to continue taxpayer-funded resettlement in states that no longer willingly participate.
When States Aren’t In Charge, the Numbers Spike
VOLAGs receive anywhere from $3,000 to $5,000 for each refugee they resettle, so they seek to maximize refugee numbers, and find it much easier to place more in states with no oversight. The numbers make the case.
Between fiscal year 2002 (the earliest state-by-state data available) and fiscal year 2017, Alabama, Alaska, Kansas, Kentucky, Maine, Nevada, New Jersey, North Dakota, Tennessee, and Texas dropped out. Of these, five have been run by VOLAGs long enough to compare resettlement data before the state left the program and after. The table below shows the results.
Note that even in just the first year, refugee resettlement in those states shot up an average of more than 50 percent. In total, these states have seen an average annual increase of 127 percent since they relinquished program oversight.
As a result of all these factors, the refugee resettlement program has evolved into a largely unfunded mandate on states, and especially in Wilson-Fish states. The TMLC complaint specifically charged:
Defendants have exceeded and, absent relief from this Court, will continue to exceed the powers granted to the federal government under the Spending Clause of the United States Constitution as well as the limits imposed upon the federal government by the Tenth Amendment, thereby infringing upon the constitutionally-protected sovereignty and powers of the State of Tennessee.
Defendants included the U.S. Departments of State and Heath and Human Services, their respective refugee resettlement offices and leadership, including former Secretary of State Rex Tillerson and HHS Secretary Tom Price. The government, under newly appointed Attorney General Jeff Sessions, filed for dismissal. Perhaps Sessions was overwhelmed in his new job and poorly served by those underneath him, but this was one opportunity to rein in the out-of-control refugee program.
The House Judiciary Committee under Bob Goodlatte introduced the Refugee Program Integrity Restoration Act (H.R. 2826), last June. Among other things, it assures that states that leave the program will not get more refugees against their will. The bill has languished in committee.
But there is a much easier way to accomplish the same goal. That would simply be to rescind regulation 45 CFR 400.301. The administration could do this today, giving Wilson-Fish states an immediate break. Then the lawsuit could continue its long march through the courts on appeal until it reaches a sane jurist. It would then be immediately declared unconstitutional, and that would be the end of the story.