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Monday, November 30, 2015

Do States Have the Power to Bar Syrian Refugees?

Short answer: "no." Long answer: "maybe, but..."

In my last post about Syrian refugees, I outlined the moral and strategic case for admitting them. In this one, I focus on the constitutional issues raised by state efforts to bar their entry. Thirty-one state governments have announced they will refuse to take additional Syrian refugees.

Do they have the legal authority to do so? Under current Supreme Court precedent, the answer is a clear “no,” though things might be different under the original meaning of the Constitution. In addition, state government discrimination against Syrian refugees likely violates the Fourteenth Amendment.

Limits on State Power to Bar Migrants.

As legal scholar Steve Vladeck explains, longstanding Supreme Court precedent holds that immigration policy is under the exclusive control of the federal government, and that states have no right to exclude any immigrants who have been lawfully admitted under federal law. This doctrine was reaffirmed by the Supreme Court in Arizona v. United States (2012), where the Court struck down an Arizona state law intended to facilitate the exclusion of illegal immigrants.

Indeed, the Syrian case is a much easier one than Arizona was. In the latter instance, the state government claimed that it was merely trying to exclude migrants whose presence was illegal under federal law. If federal control over immigration policy preempts even state efforts to bolster the enforcement of federal law, it even more clearly prevents states from excluding migrants whose presence is actually legal under federal legislation (in this case, the 1980 Refugee Act).

State governments might be able to deny refugees some resettlement assistance currently provided by state agencies. But they can’t bar Syrian refugees from settling within their jurisdiction.

The above is true under current and longstanding Supreme Court precedent. Things might be very different under the original meaning of the Constitution, which, in my view, does not give Congress any general authority over immigration.

Under this approach, states had broad power over immigration, and many states did in fact exclude some categories of migrants in the early to mid-nineteenth century. I would be happy to see the Supreme Court go back to the original meaning in this field (though the odds of that happening in the near future are extremely low).

But restoration of the original meaning is unlikely to appeal to modern immigration restrictionists because it would require them to concede that the federal government lacks the power to bar migrants. Immigrants could then still enter the US so long as at least one state was willing to take them.

In any event, those who seek to bar Syrian refugees face a choice: they can argue that Congress has broad power to exclude refugees and other immigrants, or they can argue that states have the authority to do so, regardless of federal law. But they cannot consistently advocate both at the same time. If the federal government has power over immigration, then federal legislation supersedes any contrary state laws, under the Supremacy Clause of Article VI of the Constitution.

Discrimination against Syrian (or Muslim) Refugees Violates the Fourteenth Amendment.

State efforts to bar Syrian refugees are likely unconstitutional for another reason: they violate the Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment has long been understood to bar not only racial discrimination, but also discrimination on the basis of religion and national origin.

These types of discrimination by state governments are subject to “strict scrutiny” — the most restrictive form of judicial review, which only upholds a discriminatory law if it is “narrowly tailored” to the advancement of a compelling state interest.

If a state government tries to bar Syrian refugees or deny them benefits available to similarly situated refugees from other countries, that’s a pretty straightforward case of national origin discrimination. It is pretty much literally treating one group of people differently from another based on the nation they happen to be from. And it is highly unlikely that it can pass the rigorous strict scrutiny standard, especially if as New Jersey Governor Chris Christie advocates state discrimination against Syrian refugees is sweeping and categorical, applying even to “5 year old orphans” and others who pretty obviously don’t pose any security risks.

The same point applies to proposals, advanced by Senator Ted Cruz and others, to admit only Christian refugees from Syria, while excluding Muslims. If a state government were to adopt this policy, it would be a blatant case of discrimination on the basis of religion.

Like national origin discrimination against Syrians, religious discrimination against Muslim refugees is unlikely to pass strict scrutiny. Among other things, this form of discrimination isn’t likely to be even a minimally useful security measure, since would-be terrorists could easily pose as Christians, even if they were not.

State governments are unlikely to be able to effectively separate “real” Christians from fake ones by giving them tests on Christian theology or the like. Many genuine Christians might not know much about their religion’s precepts (as is also true of many American Christians), while a determined terrorist could surely study up, if he had to. Indeed, a terrorist funded by ISIS or some other radical Islamist group is likely to have more opportunity to study for such a test than a genuine refugee struggling to survive.

In sum, states have little if any authority to bar Syrian refugees. They might have greater discretion under the original meaning of the Constitution. But even then they would still be subject to the anti-discrimination requirements of the Fourteenth Amendment.

It’s worth noting that discrimination on the basis of national origin and religion are generally forbidden by the Fourteenth Amendment with respect to the distribution of government services, as well as when it comes to outright bans on the presence of refugees. If a state generally provides certain services to refugees, it cannot exclude Muslims or Syrians who would otherwise qualify for them.

Update: Michael Ramsey responds:

I agree that it might well be true that Congress lacks a general power over immigration under the Constitution’s original meaning. But I would think Congress could regulate the transportation of immigrants in foreign commerce. Other congressional powers might allow some further regulation of immigration, and added together they might amount to something close to a general power.

Another possibility is that border security is an executive power of the President (derived from the English monarch’s power to admit foreigners into England), and that Congress has a derivative necessary-and-proper power to pass laws in support of that power.

If the power to regulate foreign commerce includes a general power to bar the transportation of immigrants, then the power to regulate interstate commerce (which is listed in the exact same phrase in the Constitution) would include a general power to bar the transportation of native-born citizens across state lines, thus giving Congress the authority to forbid interstate migration.

That’s certainly contrary to the original meaning, and would not have been accepted by the Framers of the Constitution or leading commentators of the era. While some other powers might allow regulation of some migration (e.g., barring the movement of spies, criminals, and the like), they certainly come nowhere near a general power to do so.

Finally, even if “border security” is a executive power of the president, it does not amount to a general power to exclude whatever migrants he wishes, but merely a power to exclude genuine threats to national security. And, even then, it’s notable that no such power is listed in Article II of the Constitution. That is unlikely to be because everyone took it for granted, because Article II does specify several other executive powers which were far more likely to be assumed, such as the power to command the armed forces and to enforce federal law.

When the Alien and Sedition Acts of 1798 granted the president broad power to deport aliens considered “dangerous to the peace and safety of the United States,” James Madison denounced it in the famous Virginia Resolution because it “exercises a power no where delegated to the federal government.”

His view was the dominant one at the time, and led to Thomas Jefferson’s refusal to enforce the act after he won the election of 1800. The newly elected Republican Congress repealed some parts of it, and allowed the rest to lapse.

This post first appeared at Volokh Conspiracy. 

  • ILYA SOMIN is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy.