Private sector social service agencies on Jan. 8 were relieved of a burden associated with persuading state and local governments to accept emigrés in their communities when a federal appeals court upheld an injunction against a Trump administration decision to give those jurisdictions the power to prevent refugee resettlement within their borders.
Executive Order 13888, announced in September 2019, provides that “[s]ome States and localities . . . have viewed existing consultation as insufficient, and there is a need for closer coordination and a more clearly defined role for State and local governments in the refugee resettlement process.” President Donald Trump’s favored method of imposing that “closer coordination” — a near-seamless state or local government veto on refugee resettlement — immediately drew opposition from immigrant advocates and refugee services organizations.
The shift of control caused by the executive order is unprecedented, according to International Refugee Committee – Denver executive director Jennifer Hendrick Wilson. “That’s something that’s never happened in the history of the program,” she said. “The program was formalized with the Refugee Act of 1980 and, in the 40 years since, there has never been that kind of authority.”
Wilson said the order imposed difficult logistical burdens on resettlement agencies and legal conundrums for cities and towns. “It forced us into a situation where we had to engage with the governor’s office and, here in Colorado and in some other Western states, not only counties but municipalities,” she said. “In the West, especially, many of the counties felt that they do not have the authority to commit on behalf of cities.”
Wilson said she spent hours educating county commissioners and city council members about the benefits of refugees.
Meanwhile, city governments sometimes found themselves unsure of how to comply with Trump’s order. Refugee advocates are used to helping city governments determine how to help newly-arrived refugees, Wilson said, but the extent of their legal authority to deny or approve settlement proved to be a confusing question.
“It was interesting, when we engaged with different municipalities and counties, we actually had some of them say [that] ‘we are not opposed to resettlement’, she said. “‘However, our city or county charter precludes us from issuing any order that would be contradictory to federal law and, under federal law, we don’t have the authority to say ‘yes’ or ‘no’ to resettlement, so we are not even able to respond.’”
As for refugees, the emotional obstacles created by the order are significant, Wilson said.
“It put them in a position of having to say ‘yes’ or ‘no’, we will allow refugees to come here or we will not,” she said, describing a situation where a refugee may have arrived years ago and now faces a decision about whether a newly-arrived family member should live with them. “You would be forced to make the choice between ‘I want my family member to come join me and be with me’ or ‘I want them to receive services and support that their entitled to,” Wilson said “and, therefore, I’m going to say, ‘no, they can’t come live with me’ or they can’t be in the same city or the same neighborhood.”
In January 2020 a federal judge in Maryland blocked the executive order from taking effect. U.S. District Judge Peter Messitte highlighted the deadlines included in Trump’s edict that could have prevented social service agencies and churches from continuing to aid refugees. E.O. 13888 established a June 1,deadline for states and municipalities to consent to refugee resettlement in their jurisdictions.
Messitte found that the order contradicted the language and purpose of the nation’s principal law governing the admission and placement of refugees.
A panel of judges of the 4th U.S. Circuit Court of Appeals upheld Messitte’s decision to grant an injunction in HIAS v. Trump, agreeing with him that the Refugee Act of 1980’s requirement that the Department of State “consult” with states and municipalities cannot be understood to allow the federal government to devolve power over admission decisions to subnational jurisdictions.
“Notably, by imposing only a “consultation” requirement, Congress chose not to require the “approval” or “consent” of the states and localities,” wrote U.S. Circuit Judge Barbara Keenan for a unanimous panel. “Nor did Congress include any other language in the [Refugee] Act suggesting that the opinions of states and localities should be given dispositive weight in resettlement decisions.”
Rejecting a Trump administration argument that the executive order preserves authority for the Secretary of State to override state and local decisions on refugee resettlement, Keenan also found that such a claim is irrelevant because the statutory consultation command requirement “not intended to give States and localities any veto power over refugee placement decisions, but rather to ensure their input into the process and to improve their resettlement planning capacity.”
The executive order would make it extremely easy for states and municipalities to obstruct refugee placement, said University of Denver Sturm College of Law professor César Cuauhtémoc García Hernández. “One easy way for a state or local government that is uninterested in having refugees resettled is simply ignoring the requests,” he said. “There was no enforcement power to that a local refugee resettlement group had to force local government or state government to issue some letter saying ‘no.’”
García Hernández also said that the Trump administration’s approach left out of consultations the organizations that exist to help refugees. “Obviously, when you arrive in a new country and a new city and have been fleeing for your life, which is a key feature of every refugee [case], then you need help,” he said. “The organizations that do this are part of the consultation process that Congress requires. What the Trump administration [tried to] do was essentially remove those organizations from the consultation process by giving state and local governments the power to say that refugees could not be resettled in their communities without regard to what the local organizations actually doing the resettlement work said and without even having to take them into consideration.”
Both the state of Colorado and the City and County of Denver participated as amici in the case. Attorney General Phil Weiser welcomed the decision in HIAS v. Trump. “We in Colorado are proud of our leadership and support for refugee settlement,” he said in a statement. “In collaboration with the federal government, localities, and resettlement agencies, we have developed effective programs to welcome refugees and allow them to start new lives in peace and security. We’re pleased that the 4th Circuit Court of Appeals ruled that the White House executive order blocking refugee settlement violates the Refugee Act and stopped it from going into effect.”
Denver City Attorney Kristin Bronson also expressed her pleasure with the appeals court decision. “We have welcomed refugees in Denver and throughout Colorado since 1980,” she said. “Since that time, we have resettled over 63,000 refugees and thousands more have moved to Denver thanks to our welcoming nature and economic opportunity.
We know that refugees contribute greatly to our economy through employment, paying taxes, and in the vast cultural contributions they bring from their home countries that enrich our city. In December 2019, Denver gladly signed a required consent letter to ensure that refugees could be resettled in Denver, but we are happy to see that this letter is no longer required of municipalities and states.”
Whether the Department of Justice intends to ask the en banc 4th Circuit or the Supreme Court to stay the injunction is unknown. “I don’t see this rising to the top of the Justice Department’s agenda” before President-elect Joe Biden takes office on Jan. 20, García Hernández said. He noted, too, that Biden’s administration is unlikely to be interested in setting as many blockades to refugees as has the Trump regime, pointing to statements by Biden and Vice President-elect Kamala Harris indicating that both politicians support an increase in refugee admissions.
— Hank Lacey