If successful, a lawsuit by the state of Tennessee against the federal government could empower states to withdraw from the federal refugee resettlement program.
The assessment comes in a new report by the Center for Immigration Studies that spotlights the federal government’s ability to compel a state to pay for federal programs they don’t want.
Over time, writes CIS fellow Don Barnett, the author of the report, the federal government “has shifted the fiscal burden of resettling refugees to the states, often requiring resources be taken from social services, infrastructure, schools, as well as other state taxpayer priorities to implement a federal program.”
“This was not the intent of the Refugee Act passed in 1980 and likely violates the 10th Amendment,” he said.
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If the court rules in Tennessee’s favor, states would be able to withdraw fully from the refugee resettlement program by negating what Barnett describes as a legally questionable 1994 regulation.
Barnett explained that the federal government uses the regulation (45 CFR 400.301) rather than statutory law to allow private non-profits to operate in a state where the state has asked to withdraw from the program.
Prior to 1994, according to one reading of the law, there was no authority to resettle refugees in states that chose to withdraw from the program.
That meant, he said, knowingly or not, states were participating in and paying for a voluntary program from which they had every right to withdraw at any time with the expectation that no refugees would be resettled in the state.
Last March, Tennessee became the first state to sue the federal government over refugee resettlement on the grounds of the 10th Amendment. The suit on behalf of several lawmakers argues the federal government possesses only the powers delegated to it by the U.S. Constitution, reserving all other powers for the states.
Other states have sued the federal government over refugee resettlement on different legal grounds.
A bill introduced last year in the U.S. House, the Refugee Program Integrity Restoration Act, would provide state and local governments the power to decide if refugees are to be resettled within their communities and gives Congress, rather than the president, the authority to set the overall refugee ceiling for each year.
Barnett said passage of the bill seems unlikely, especially in the Senate, and it wouldn’t necessarily obviate the need for Tennessee’s lawsuit, because it does not address regulation 45 CFR 400.301.
“Ultimately, the courts will have to define the state’s place in this program and answer the question ‘Do states have an authentic and meaningful say in the refugee resettlement program?'” Barnett said.
In the Tennessee case, the ACLU and the federal government filed a motion to dismiss last June. There’s been no word from the court since then, which is not unusual, according to the Thomas More Law Center, which is representing the state lawmakers.
Among the report’s findings:
- Repealing regulation 45 CFR 400.301 could have the immediate effect of allowing states to withdraw from the U.S. Refugee Admissions Program (USRAP) and end initial resettlement activities in the state.
- Today, states that withdraw from the program find the program continues in the state with the potential to operate on a larger scale than before withdrawal and with no state participation.
- As implemented, states have a limited and ill-defined role in the federal refugee program.
- Congress has shirked its responsibility to fully fund the refugee resettlement program.
- The federal government has shifted much of the fiscal burden of refugee resettlement to states. Three years of reimbursement for the state portion of welfare programs used by refugees in the state, such as Medicaid, TANF and SSI, was authorized by the 1980 Refugee Act. This support was ended entirely.
- The Act authorized Refugee Medical Assistance (RMA) and Refugee Cash Assistance (RCA) for three years for refugees who do not qualify for cash welfare and Medicaid. This support was gradually scaled back; today RCA and RMA are available for only eight months.
- This cost shift to the states means the federal government is, in effect, using state funds to operate a federal program. In cases where a state asks to withdraw from the program, continuation of the program means the state has lost its ability to control its own budget and is deprived of its sovereignty under the Tenth Amendment.
- Consultation among “stakeholders” about where refugees are to be settled is ill-defined in the USRAP. At times there is no meaningful consultation with state authorities.