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Tuesday, March 1, 2016

State Discrimination against Syrian Refugees Is Unconstitutional

Discrimination based on national origin violates the 14th Amendment

A federal district court judge recently ruled that Indiana’s denial of funds to Syrian refugees that are given to refugees from other countries is “national origin” discrimination that probably violates the Fourteenth Amendment. Jacob Gershman of the Wall Street Journal has a helpful summary of the decision:

Indiana unconstitutionally discriminated against Syrian refugees by freezing federal funds that were supposed to help fleeing families resettle in the state, a federal judge has ruled. …

U.S. District Judge Tanya Walton Pratt, in a 35-page ruling, said Indiana’s policy amounted to unconstitutional discrimination on the basis of national origin, a violation of the the Equal Protection Clause of the Fourteenth Amendment and civil rights law.

She granted a preliminary injunction that prohibits Indiana “from taking any actions to interfere with or attempt to deter the resettlement of Syrian refugees by” the private agency.

The full text of the opinion is available here. As Judge Pratt explains, this is actually a fairly straightforward case: “In the end, the State tries to complicate a question that is rather straightforward. It is treating refugees who originate from Syria differently than those from other countries. If this is not national origin discrimination, the Court does not know what is.”

I don’t know either. I predicted that state discrimination against Syrian refugees would be vulnerable to this sort of attack back in November, when states first began to adopt such policies:

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.

In that same post, I noted that Ted Cruz’s proposal to bar only Muslim Syrians (while accepting Christians and others), is vulnerable to similar objections, because discrimination on the basis of religion is also subject to strict scrutiny. But, to my knowledge, no state has tried to adopt that approach.

Judge Pratt’s ruling is only a preliminary injunction and therefore not a final decision on the merits. But she makes clear that her view is that the plaintiff’s position is likely prevail. Indeed, that is the whole basis of the ruling.

A version of this post first appeared at the 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.