Texas May Have A Tough Time Winning Suit Against Federal Government Over Refugees

December 3, 2015 1:33 p.m.

The state of Texas on Wednesday sued the federal government over plans to resettle Syrian refugees in the state, citing the government’s failure to properly consult state officials, but it’s not clear that immigration law will allow the state of Texas to prevail over the federal government when it comes to refugee resettlement, according to a legal expert.

In the complaint filed by the Texas Health and Human Services Commission, the state claims that the federal government “breached this statutory duty of advance consultation” by preventing the state from receiving information about the refugees set to arrive in the state and by “refusing to consult with the State in advance on placement of refugees in Texas.” The complaint cites a provision in the Refugee Act of 1980 that states that the federal government must consult with the states about plans to resettle refugees.

However, it’s not clear that the states can use that consultation requirement to influence the federal government’s plans to resettle refugees. Shoba Wahdia, a law professor and director of Penn State’s Center for Immigrants’ Rights Clinic, told TPM that the Refugee Act, specifically the provision that says the federal government must consult with states, does not give the states “veto power” over the federal government when it comes to resettling refugees.

And the consultation requirement may not be judicially enforceable, according to Stephen Vladeck, a law professor at American University.

“For Texas to be able to sue the federal government, they’re going to have to show that Congress meant for that consultation requirement to be subject to judicial enforcement,” Vladeck told TPM. “I don’t think there’s any indicator that Congress meant for that.”

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There is no clause in the consultation requirement that notes that states have the power to successfully sue the federal government over that part of the law, according to Vladeck. And there is no judicial precedent for states suing the federal government over immigration law, leaving it unclear whether a federal judge would let Texas proceed with the lawsuit, according to Vladeck.

Vladeck added that the complaint filed by Texas is “tellingly silent” on whether the law allows the state to sue the federal government over the consultation requirement.

The provision also lacks detail about how the federal government must go about consulting the states, according to Vladeck.

“The biggest problem for Texas is that the statute doesn’t really specify what consultation means,” he told TPM. “And it doesn’t condition any federal government authority on satisfactory consultation.”

Given the few details in the provision, Vladeck said that the consultation requirement is “mostly there to encourage communication, not to create legal rights.”

The state of Texas also listed aid organization International Rescue Committee in the lawsuit for breaching its contract with the state “to work in close cooperation and advance consultation with Texas” regarding refugee resettlement. The details of Texas’ contract with the International Rescue Committee are not yet clear.

While some federal refugee aid does funnel through states, Vladeck said that “nothing stops the federal government from going directly to private groups” with funds for refugees arriving in the state.

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