by Anita Sinha, Practitioner-in-Residence, Immigrant Justice Clinic, American University Washington College of Law
Since the horrific Paris attacks that killed 130 people the night of November 13, more than half of all U.S. governors have made declarations limiting or denying Syrian refugee resettlement in their states. Many of us who practice and teach immigration and refugee law, myself included, thought these statements were political grandstanding that would not be put into action – because they could not. Our certitude was based on the U.S. Constitution, federal anti-discrimination laws, and international humanitarian law. Also critical is the fact that immigration regulation and enforcement is a federal, not state, matter – a principle recently affirmed by the Supreme Court in its Arizona v. United States decision. The power to vet and admit refugees specifically is squarely in the hands of the federal government.
Then one of the governors, Indiana’s Mike Pence, actually barred from his state a family who had just landed in the U.S. before he declared the state’s suspension of Syrian refugee resettlement. That family was eventually taken in by Connecticut. But according to a lawsuit against Governor Pence filed this week by the American Civil Liberties Union, 19 additional Syrian refugees are expected to resettle in Indiana over the next few weeks or months. It may be only a matter of time before one or more of the other 25 states start turning away Syrian families. And so these state-by-state refugee rules may not be simply rhetorical. They are, however, still contrary to what Professor Steve Vladeck calls laws that are “both well settled and well conceived on the relative roles of the state and federal government when it comes to refugee crisis.” And there are compelling reasons to stick to these roles.