As the U.S. Supreme Court reaffirmed in its 2012 decision, Arizona v. United States, the federal government’s power to regulate immigration is pre-eminent and may not be disrupted by state laws. Federal authority is grounded in Congress’s power to establish a “uniform Rule of Naturalization” and the inherent sovereign powers of the executive branch. As Justice Kennedy wrote, “Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation.... Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.”
Refugees are defined as persons who have fled their home countries and have “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Persons who have participated in the persecution of others are not considered refugees. Nations assist refugees by providing transportation to safe zones, funding refugee camps and services, and granting legal (asylee) status to people, like the millions of recent arrivals in Europe, who relocate on their own. The United States is one of the few countries that has a formal resettlement program that takes refugees from the country to which they originally fled and relocates them in a third country.
Most refugees resettled in the United States are first identified, registered and assessed by the United Nations or one of its partners, like the International Catholic Migration Commission, as qualified for and in need of resettlement. All refugee applicants are interviewed and vetted outside the United States, and anyone who is deemed a threat to the security of the United States is rejected for resettlement. Refugees from Syria are subject to additional scrutiny. When a person is approved for resettlement, the federal government works with select U.S. nonprofits, including the U.S. Conference of Catholic Bishops, to identify welcoming communities and suitable homes for refugees. The federal government also works with state governments to fund and provide basic social services to refugees during their initial adjustment period.
State challenges to refugee resettlement. State objections to the resettlement of refugees from Syria and Iraq are based on the same general authority to protect the peace relied upon by Arizona when it created state law penalties for persons without lawful immigration status. The Supreme Court struck down those laws because even the broad, constitutionally recognized police powers of the states do not trump federal control of immigration. Thus, with regard to refugee resettlement, states may not prevent the federal government from admitting refugees, nor prevent religious and nonprofit organizations from resettling refugees within their borders. They also may not stop refugees resettled elsewhere from moving to their states nor deny state benefits to otherwise qualified refugees. States also are prevented from implementing discriminatory policies based on religion, race and country of origin.
Federal refugee discrimination. Unlike the state governments, Congress may pass discriminatory immigration laws when justified by U.S. national interests. Refugee laws, by their very nature, are designed to protect specific groups from persecution. Congress, however, shares immigration power with the executive branch. The current administration has deemed Syrian and Iraqi resettlement of special concern to U.S. interests. No one can say with absolute certainty that a person is not a security threat. Thus, bills that would require such certification would effectively terminate refugee resettlement and would be vetoed by President Obama.
Even when acting in unison, however, Congress and the president still are constrained by the Constitution. A law that bans all Muslims from entering the country, for example, must be absolutely essential to national security to pass the strict scrutiny standard required by the First Amendment. Nevertheless, the Supreme Court’s 1944 Korematsu decision, which upheld the internment of U.S. citizens of Japanese descent and has never been overruled, serves as a reminder of what is possible. As Justice Scalia recently noted: “Of course, Korematsu was wrong. But you are kidding yourself if you think the same thing will not happen again. Inter arma enim silent leges.” In times of war, the laws fall silent.
