U.S. Governors Suspend Refugee Relocation in their States

Under what theory of law does state governors have the power to stop the federal government from settling refugees in their states?

federal government needs the assistance of individual state governments in the relocation of refugees.

The 27 states that have declared they won't admit Syrian refugees in the wake of the Paris terror attacks can't actually prevent refugees from entering their territory. But they can make it much harder for them to learn English or get jobs.

States have a much bigger role in helping refugees settle in the US than they have with other kinds of immigrants. Usually, that's what makes US refugee policy special. But if governors really wanted to make life harder for refugees, they could seriously damage the US's ability to turn refugees into Americans.

Governors have nothing to do with whether Syrian refugees are allowed into the US or where they choose to move

The federal government has sole authority to decide who gets allowed into the United States. Period. That's true for refugees and for every other type of immigrant. And once people have been formally "admitted" to the US, they're not obligated to stay in one place. Other types of immigrants might have to stay in one place to satisfy the terms of their visas (temporary workers have to stay with a single employer, for example), but refugees don't have anything like that. They can move wherever they like, and many do.

When governors say they're telling their state governments not to "admit" Syrian refugees, they're using the term for officially letting the refugees into the country — which is something they don't have the authority to do. That's why a lot of the immediate analysis in the press has been a black-and-white declaration that the states can't actually do anything to restrict Syrian refugees.

For most types of immigrants, that would, in fact, be that — the government admits them into the country, and then they're on their own. But refugees (and asylum recipients) are different. And state governments really are involved in helping refugees settle in the US — which gives significant opportunities to try to restrict or reject Syrian refugees.

The federal government consults with states when deciding where to resettle a refugee

Most of the time, the government doesn't allow people to settle permanently in the US unless it's assured they can support themselves here. To get permanent residency, immigrants (almost always) have to show that they can support themselves, and they either have to have family in the US, a lot of money, or a long job record here.

Refugees are different. When the US allows a refugee into the country, it accepts that the refugee might want or need to settle down permanently. And refugees aren't admitted based on how well they can support themselves or assimilate within the US — they're admitted because they're fleeing persecution and danger, and the US is taking them in as a humanitarian gesture.

Because of that, the government doesn't just let refugees into the country and set them out on their own. Refugees aren't just admitted but resettled: The federal government works with nonprofit organizations, states, and local governments to secure whatever refugees need to support themselves — things like housing, job training, and English classes.

The government actively chooses where to resettle a refugee based on whether he or she has family in the US, and where he or she will get the most support. At the end of the day, the State Department — and the nonprofit contractor that is assigned to resettle the refugee — makes that decision. But each state has a refugee coordinator responsible for working with the federal Office of Refugee Resettlement and with the state agencies that help integrate refugees, and the State Department consults with him or her to make sure that the state has enough capacity before deciding to resettle a refugee there.

In practice, this is what the governors are directing their states to do. The next time the State Department calls up and says, "Hey, can you take a dozen Syrian refugees?" the state refugee coordinator has been directed to say, "Nope, sorry."

The State Department is free to ignore that and resettle refugees in the state anyway. And while the Obama administration hasn't explicitly declared that's what it's going to do, it certainly seems likely (since the president has had zero patience for attempts to restrict Syrian refugees). Arguably, if a state tried to pick and choose which countries it was willing to accept refugees from, it would run afoul of federal anti-discrimination law: It's illegal to discriminate based on nationality, and a refugee from Syria has the same immigration status as a refugee from China.

But when states claim they have no more room for refugees at all, refugee experts say it's not unheard of for the State Department to accede to the state's request — and agree to (for example) only resettle refugees whose families already live in the state. So what the governors are trying isn't a total shot in the dark.

Governors can block state agencies from getting money to help integrate refugees

After a refugee has been placed in the US, the real work begins: integrating refugees into their communities, and helping them support themselves, is a process that takes months or years. Once a refugee is self-sufficient, she usually ends up an economic asset to the community — but that requires that initial investment.

A lot of that work is done by the nonprofit organization that's federally contracted to resettle the refugee (usually a local affiliate of a larger organization like HIAS). But much of it is done by government — mostly local government, like school district officials, but also state social services agents and such.

Both of these arms are funded through the federal government, but each is funded separately. The federal government contracts directly with the nonprofits. But it also sends "pass-through" money to the states based on the refugees they've accepted — and it's then the state government's responsibility to award grants to various state agencies based on what they promise to do with refugees.

A governor can't stop the nonprofit organizations from getting their funds. But if she wants to send a message to the federal government that the state won't help refugees, she can stop the "pass-through" money from, well, passing through. In fact, in 2010, Georgia Gov. Nathan Deal attempted to do just this: He simply refused to issue contracts for English classes, after-school programs, and job training for refugees in the state, even though those contracts were already paid for with federal money.

Deal eventually released the contracts at the end of 2011 — but it took a sustained lobbying campaign from the refugee nonprofits working in the state, which means they had to take resources away from helping refugees. Had Deal held out for longer — preventing state agencies from getting the money to integrate refugees and forcing the nonprofit groups to spend some of their energy on lobbying him to change his mind — it's theoretically possible that the nonprofits could have reached their limit and asked the federal government to stop sending refugees to Georgia.

Working with states and cities to integrate refugees is what makes America's refugee program special

The irony of what Deal did — or what any governor blocking state refugee funds would do — is that it doesn't stop refugees from coming, but it does make it harder for them to integrate. Refusing to help refugees get job training means it will take longer for them to find jobs and get off government assistance; refusing to help them learn English, or to help their children adjust to US schools, means they're less likely to feel invested in their communities. It means they're less likely to feel truly American.

In other words, these governors are turning their backs on what makes American refugee policy special.

The government doesn't take many refugees — at least compared with the number of refugees forced to live in temporary camps around the world. But when it does, it makes sure they get as much support as possible to become Americans who work and thrive in the US.

When immigrants don't get that support — when they have no reason to feel that they're members of their new community, and can only rely on their fellow immigrants for support — we know what happens. That's exactly what France and other European countries are dealing with right now with their Muslim immigrant communities: second- or third-generation immigrants who have absolutely no reason to feel French. There are a lot of reasons Europe has struggled to integrate its immigrants, but it's certainly true that the government didn't take an active role in integrating them when they first arrived.

This isn't a perfect parallel: The European immigrants in question largely weren't refugees when they arrived. But the governors trying to restrict Syrian refugees, out of fear that they'll be a "fifth column" loyal to ISIS rather than the US, are looking to Europe for their evidence that this could happen (since they certainly can't find it in the US). Using the Paris attacks as a reason to starve Syrian refugees in the US of funds is one of the things most likely to make refugees disaffected and isolated that a state could possibly do.

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The 27 states that have declared they won't admit Syrian refugees in the wake of the Paris terror attacks can't actually prevent refugees from entering their territory. But they can make it much harder for them to learn English or get jobs.

States have a much bigger role in helping refugees settle in the US than they have with other kinds of immigrants. Usually, that's what makes US refugee policy special. But if governors really wanted to make life harder for refugees, they could seriously damage the US's ability to turn refugees into Americans.

The constitutional question over states and Syrian refugees
(National Constitution Center, November 18, 2015)

With more than two dozen governors objecting to a federal government plan to accept Syrian refugees, a spotlight has been placed on how the Constitution deals with these matters.

In the long run, Congress might have a bigger say in a federal policy decision that could see as many as 10,000 Syrian refugees accepted into the United States in the coming year. State leaders, such as governors, and state legislatures have far fewer options.

In general terms, the Constitutional power for the federal government, and not the states, to control immigration policies and laws comes from interpretations of Article 1, Section 8, Clauses 3 and 4, of the Constitution. A Supreme Court decision from 1941, Hines v. Davidowitz, explained the logic behind this, which involves conflicts between federal and state jurisdiction.
http://blog.constitutioncenter.org/2015/11/the-constitutional-question-over-states-and-syrian-refugees/