Does President Trump’s Refugee Executive Order Violate State Sovereignty?
Ever since its announcement, Executive Order (EO) 13888, “Enhancing State and Local Involvement in Refugee Resettlement,” has sparked a mass of confusion among refugee resettlement agencies, refugee support organizations, and state and local governments. Litigation soon followed, as a number of refugee resettlement agencies filed suit against the Trump administration in The U.S. District Court for the District of Maryland (HIAS v. Trump).
Recently, the judge hearing the case granted a preliminary injunction enjoining the Trump administration from enforcing the EO. In its complaint, HIAS and the other refugee resettlement organizations allege that the EO violates The Refugee Act of 1980 and the Administrative Procedure Act (APA). In addition, the complaint claims that the EO trespasses on principles of federalism enshrined in the U.S. Constitution – that it seeks “to delegate to state and local governments authority that the Constitution vested exclusively with the federal government.”
Conspicuously absent from this complaint is another potential constitutional issue regarding EO 13888: rather than “enhance” the power of state governments (as the EO’s title proclaims), the actual effect of this Order may be to reduce the power of state governments vis-à-vis their local governments in contravention of the Tenth Amendment and state sovereignty.
Specifically, the order requires resettlement agencies to seek the consent not only of state governments in refugee resettlement, but also of local governments. That means, even if a state were to consent to refugee resettlement within its borders, a resettlement agency still must gain the consent of specific local governments within that state for full compliance with the EO.
And we already see this at play. Although the State government has given consent for refugee resettlement, the mayor of Springfield, Massachusetts has refused to consent to refugee resettlement in the city. Meanwhile, Beltrami County in Minnesota recently voted against accepting refugees into their jurisdiction, despite the State government’s previous written expression of support for refugee resettlement across Minnesota.
This puts the Federal government in the precarious position of interceding between State and local governmental authority – specifically taking sides to empower localities’ policies on refugee resettlement against their respective State governments’ policies.
To date, 41 states have officially consented to refugee resettlement within their jurisdiction, with Texas being the only state to officially refuse such refugee resettlement. And of the 26 Republican governors in the U.S., a majority, 18, have consented to refugee resettlement. In essence this creates a horizontal federalist norm in contrast with the Trump administration’s policy — a federalist norm with even more legitimacy deriving from its bipartisan nature, as substantial numbers of both Republican and Democratic states have consented to refugee resettlement.
As a result of these potential state sovereignty concerns, the attorneys general of 12 States who have consented to refugee resettlement within their jurisdictions penned an amicus brief in support of the resettlement agencies’ lawsuit. Among the issues the attorneys general raise is that the EO “would effectively allow counties—subunits of state government—to override refugee settlement decisions and prerogatives of the States that reflect statewide interests and concerns”
This Federally created “veto power of local governments,” the attorneys general say, would not only thwart States’ “sovereign prerogative” in formulating and administering statewide refugee resettlement policies, but it also stands anathema to a key objective of The Refugee Act: empowering States with “a greater role in refugee placement decisions than that afforded to local governments.”
And so the issue this EO raises regarding Federal interposition between State and local authority remains an important question. American jurisprudence has long recognized that local governments are State creations whose powers originate from their respective State governments.
As the amicus brief of the attorneys general puts it, these local governments are “political subdivisions of States” that “derive their authority from state governments and states constitutions.” As such, the ability of the Federal government to empower localities to counter their States’ refugee resettlement policies would certainly call into question this longstanding principle of state sovereignty.
Meryl Chertoff is the Executive Director of SALPAL and an adjunct professor of law at Georgetown Law.
William Rice, a Research Assistant with the Georgetown Project on State and Local Government Policy and Law (SALPAL), is a second year law student at Georgetown University Law Center’s Evening Program.