Why Governors Can't Refuse To Take Syrian Refugees But That Doesn't Mean They Have To

PRESHEVO, SERBIA - SEPTEMBER 04: Syrian migrants join thousands waiting for travel documents to be issued at a Serbian processing facility September 4, 2015 in Preshevo, Serbia. After stopping at the Serbian processing facility, where the wait can last for three days, many of the migrants will continue north by bus to attempt to enter Hungary. Since the beginning of 2015 the number of migrants using the so-called 'Balkans route' has exploded with migrants arriving in Greece from Turkey and then travelling on through Macedonia and Serbia before entering the EU via Hungary. The number of people leaving their homes in war torn countries such as Syria, marks the largest migration of people since World War II.  (Photo by Win McNamee/Getty Images)

The Obama administration’s plan to accept some tens of thousands of Syrian “refugees.” I put refugees in scare quotes because this is more accurately a population migration not a refugee problem. These people are not fleeing a war zone. They have already done that. These people are fleeing the safety and relative comfort of internationally supported refugee camps in Turkey. They also are not refugees as we ordinarily consider them. The UN High Commissioner On Refugees says 65% are military aged males.

The original plan was to import 10,000 job seekers and potential terrorists, but Senate Democrats, deciding that they may not get enough bang for their buck, demand that at least 65,000 be brought into our communities.

Senator Richard J. Durbin, Democrat of Illinois, who wrote a letter along with 14 other Democrats urging Mr. Obama to take an additional 65,000 Syrian refugees, praised his pledge to take 10,000 Syrian refugees next year as “a step in the right direction.”

“I think the number has to be higher, but as I mentioned, we have a process, we have to be careful that each one of them is vetted so there’s no threat,” Mr. Durbin said.

Senator Chris S. Murphy of Connecticut said there were risks in doing nothing, too. “Do we think we make this country more or less safe from terrorism by showing a cold-heartedness to this refugee crisis?” he asked. “I think the answer is no.”

On Wednesday, Secretary of State John Kerry said at a closed-door meeting on Capitol Hill that the total number of refugees taken in by the United States could rise to more than 100,000, from the current figure of 70,000. State Department officials said that not all of the additional 30,000 would be Syrians, but many would be. But Mr. Earnest said that members of Congress “misunderstood” Mr. Kerry, and that the number of refugees would not rise to 100,000 next year but might in later years.

This nice infographic from the NY Times shows the state of play:

syrian refugee map sm

After the slaughter in Paris on Friday, many governors have decided that they don’t want anything to do with this insanity.

The list of states climbed quickly to 23 by Monday evening, after President Obama said that the U.S. would continue to accept refugees and denounced efforts to stop those fleeing violence from coming to the United States as “shameful.”

Governors of Illinois, Ohio, Florida, North Carolina, South Carolina, Maine, Iowa, Oklahoma, Wisconsin, New Jersey, New Hampshire, Arizona, Indiana, Massachusetts, Idaho, Louisiana, Michigan, Alabama, Texas, Kansas, Georgia, Mississippi, and Arkansas — a majority of them Republican — have said that they are seeking to stop the relocation of new Syrian refugees to their states out of fear that violent extremists posing as refugees might gain entry to the country.

New Hampshire Gov. Maggie Hassan, who is also challenging [mc_name name=’Sen. Kelly Ayotte (R-NH)’ chamber=’senate’ mcid=’A000368′ ] (R-N.H.) for her Senate seat, is the first Democrat to express support for halting the flow of refugees to the U.S. pending further assurances that the refugee vetting process is adequate.

“The Governor has always made clear that we must ensure robust refugee screening to protect American citizens, and the Governor believes that the federal government should halt acceptance of refugees from Syria until intelligence and defense officials can assure that the process for vetting all refugees, including those from Syria, is as strong as possible to ensure the safety of the American people,” William Hinkle, a spokesman for Hassan, said in a statement.

The fact is that it is impossible to “vet” these refugees because there is no way of knowing who they are or where they come from. We know counterfeit Syrian passports are readily available and we know one of these fake passports was used by one of the Paris attackers.

But, in the big scheme of things, the governors are operating with very real legal constraints:

The problem for Jindal, Abbott and the other governors opposed to admitting refugees, however, is that there is no lawful means that permits a state government to dictate immigration policy to the president in this way. As the Supreme Court explained in Hines v. Davidowitz, “the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution.” States do not get to overrule the federal government on matters such as this one.

Just in case there is any doubt, President Obama has explicit statutory authorization to accept foreign refugees into the United States. Under the Refugee Act of 1980, the president may admit refugees who face “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” into the United States, and the president’s power to do so is particularly robust if they determine that an “unforeseen emergency refugee situation” such as the Syrian refugee crisis exists.

But the states have unlimited authority to make settling potential terrorists within their jurisdiction a hellish experience for the federal bureaucracy:

A governor can easily forbid all state agencies from cooperating with the federal government in this effort. For instance, when the Mariel boatlift refugees were sent to Fort Chaffee, Arkansas, for processing and rioting ensued, the obscure governor of that state, Bill Clinton, took action:

And while it could be problematic to single out the Syrian tranche of refugees, a governor actually has more leverage in holding the entire federal immigration program, insofar as it deals with refugees, hostage. In other words, by the insertion of a single Syrian refugee in the stream the federal government could lose the cooperation of half the states in the union on all resettlement programs.

If the number is kept to 10,000, the federal resettlement bureaucracy would be crushed. At 65,000, disaster wouldn’t begin to describe the ensuing chaos.

So while the left is right, in absolute terms state governors cannot refuse to take Syrian terrorists refugees, in reality, by refusing to cooperate they can make the program absolutely unmanageable.

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