FARMVILLE, Va.—During Tuesday’s vice presidential debate, Sen. Tim Kaine criticized Gov. Mike Pence’s efforts to protect Indiana families from Syrian refugees who had not been vetted before being brought into this country, but, in fact, a federal appeals court bolstered Donald Trump’s argument that if Americans want to change the nation’s refugee policy, they need to vote Trump-Pence.
As it became clear that President Barack Obama was importing thousands of Syrians who had not been vetted to ensure they were peaceful refugees who would assimilate into U.S. society and embrace American values, Governor Mike Pence issued an order declining to work with federal contractors to resettle those Syrians into parts of Indiana, in neighborhoods surrounded by Hoosier families.
In the Refugee Act of 1980, Congress established a program for the federal government to work with the states to resettle refugees in the United States, under which companies performing the resettlement work can be reimbursed by the government. Exodus Refugee Immigration is one such organization, and sued Pence, alleging that only Congress and the president can make those decisions, not states and governors.
On October 3, a panel of the U.S. Court of Appeals for the Seventh Circuit sided with Exodus, primarily on the ground that Pence had not presented evidence that the refugees in his state were dangerous.
Pence readily accepted that fact during his masterful debate performance on Tuesday, explaining to his opponent Kaine that the federal government’s obligation was to prove that these refugees were safe before bringing them to the Hoosier State, rather than dumping them into a civilian population without any idea of who they are or whether they are dangerous.
“The FBI and [Department of] Homeland Security said we can’t know for certain” whether (or which) refugees coming from Syria are involved in Islamic terrorism, Pence explained. (Many undercover jihadist terrorists have entered Europe posing as refugees and have committed acts of terrorist acts in Germany and France.)
“You’ve got to err on the side of the safety and security of the American people, Senator,” Pence insisted.
The Seventh Circuit took a different view in an opinion written by Judge Richard Posner, an appointee of Ronald Reagan, who, nonetheless, has been a longtime judicial activist who frequently expresses establishment elite views from the bench and even in newspaper op-eds. While the court did not dispute Pence’s assertion that Indiana had a “compelling interest in protecting its residents from the well-documented threat of terrorists posing as refugees to gain entry into Western countries,” it noted that as of this date, no evidence has been unearthed showing that such undercover operatives are among the Syrians sent to Indiana.
Posner exploited the opportunity of being the opinion’s author to take a couple cheap shots at the vice presidential nominee, such as referring to Pence’s concern for Hoosiers’ safety as “nightmare speculation”—an opinion that terrorist victims in Paris and Nice might not dismiss so breezily.
But in Exodus Refugee Immigration v. Pence, Posner also quoted the provision in the Refugee Act at 8 U.S.C. § 1157(a)(2), where Congress authorizes the president to decide on the basis of “humanitarian concerns or … the national interest” how many refugees the federal government will admit each year into the United States.
While the Chicago-based appeals court focused on the lack of evidence for or against terrorism (which is precisely the reason Pence issued the order that is being challenged in court—the Obama administration’s failure to gather evidence one way or the other to vet thousands of Islamic refugees from this Middle Eastern war zone), the panel acknowledged that the federal government can conduct security screenings to keep out worrisome individuals.
In doing so, the court reinforced a central theme of Trump’s candidacy: America needs to adopt “extreme vetting” to ensure that as this nation opens its doors to the victims of war, it is also able to reliably exclude those who would bring the war to our shores.
The appellate court held that Governor Pence does not have legal authority under federal law to make that decision, but also made indisputable that a Vice President Pence would be able to work with a President Trump to make precisely those decisions.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.