States Can’t Ban Syrian Refugees But They Could Muck Up The Process

More than two dozen governors this week have said that their states will not accept refugees from Syria in light of the terrorist attacks in Paris, yet states do not have the authority to turn away refugees.

Admission for immigrants and refugees is decided at the federal level and states have no “formal” role in the process, according to Kathleen Newland, co-founder of the Migration Policy Institute.

“The program works best when there is good cooperation between state and federal authorities, but the states don’t have any statutory authority to stop refugee resettlement. But they certainly can interfere with it and see that it doesn’t run smoothly,” Newland told TPM. “And the federal government would certainly prefer not to shove it down their throats. They would prefer a cooperative relationship.”

In 1941, the Supreme Court ruled in Hines v. Davidowitz that the federal government, not the states, has power over immigration.

“The Supreme Court has made clear for over 100 years that once an immigrant is admitted into the country, it’s not up to the states to restrict their travel,” Stephen Vladeck, a law professor at American University, told TPM.

Florida Gov. Rick Scott (R), one of the governors who said he would not take in refugees, actually acknowledged that he didn’t have the power to do so.

In a letter to Congressional leaders asking them to prevent Syrian refugees from being admitted into the U.S., Scott wrote that Florida state agencies will not process requests to accept refugees, but that “it is our understanding that the state does not have the authority to prevent the federal government from funding the relocation of these Syrian refugees to Florida even without state support.”

The federal government does not need states’ permission to resettle refugees in a specific location, and the government funds a large chunk of resettlement costs. But the federal government is required to consult with state and local governments, as well as private resettlement agencies, and states provide certain social services to new immigrants, according to Vladeck.

Although governors cannot prevent Syrian refugees from entering their states, they may be able to make it difficult for the federal government to settle refugees there.

Vladeck told TPM that “there are informal and indirect ways in which states can make it difficult for the federal government.”

States could “drag their feet” on identifying locations to settle refugees and refuse to quickly provide access to social services, according to Vladeck.

“They could find ways to be obstructionists that would not categorically preclude resettlement, but that would certainly hinder it,” he told TPM.

Sean de Four, vice president of child and family services with Lutheran Social Services of Michigan, a group that helps resettle refugees in Michigan, told the Detroit Free Press that Gov. Rick Snyder’s opposition to accepting refugees could make settling them in the state more challenging.

“He could make it very difficult, next to impossible for refugees to come here,” de Four said.

Vladeck said that it’s “hard to predict” how much states could hinder the refugee resettlement process. He said that in areas with robust private partners to aid resettlement, obstruction at the state level will have less of an impact.

And ultimately, the federal government will still be able to settle refugees in the U.S. despite state objections.

“The federal government probably is of the view that it can make this work even with a whole bunch of states not cooperating,” Vladeck told TPM.

Governors’ attempts to target Syrian refugees in particular, are also unconstitutional and could invite lawsuits, according to both Newland and Vladeck. In particular, states that enact official policies targeting Syrian refugees could face legal action.

Louisiana Gov. Bobby Jindal (R) issued an executive order on Monday targeting refugees from Syria.

“All departments, budget units, agencies, offices, entities, and officers of the executive branch of the State of Louisiana are authorized and directed to utilize all lawful means to prevent the resettlement of Syrian refugees in the State of Louisiana while this Order is in effect,” the order reads.