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Why 12 States Hold Key to Constitutional Challenge to Refugee Resettlement Program

Twelve states hold the key to a constitutional challenge to the increasingly controversial U.S. Refugee Resettlement program.

In states where governments have withdrawn from the U.S. Refugee Resettlement Program the program is now run by private charities contracted by the U.S. Department of State under the statutorily questionable “Wilson-Fish alternative program.

As Breitbart News has reported previously, the Thomas More Law Center, a well respected public interest law firm, is looking for one brave governor from among these twelve states (Alaska, Alabama, Colorado, Idaho, Kentucky, Louisiana, Massachusetts, Nevada, North Dakota, South Dakota, Tennessee, Vermont) to step up and act as the plaintiff in the case.

The constitutional argument is that the federal government, without the permission of these 12 Wilson-Fish states, has “commandeered” state funds by placing refugees in their states, thereby obligating states to pay Medicaid expenses for the refugees, in violation of the Tenth Amendment to the Constitution, which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In effect, the federal government is imposing an unfunded federal mandate by regulatory fiat, rather than statutory authority, on these 12 “Wilson-Fish alternative program” states.

The statutory authority for the U.S. Refugee Resettlement program, which has brought over 3 million refugees into the United States over the past three decades at an average rate of 100,000 per year, originates in the Refugee Act of 1980.

One of the crowning legislative achievements of the late Senator Edward M. Kennedy (D-MA), the bill was signed into law by President Jimmy Carter on March 17, 1980.

That law did not compel state governments to administer the local refugee resettlement program, nor did it provide for the operation of a refugee resettlement program by a non-profit voluntary agency (VOLAG) in a state that chose not to participate in the program. Nowhere in the law does it positively assert that the federal government, through a subcontracted VOLAG, may settle refugees in a state that has chosen not to participate in the U.S. Resettlement Program.

In fact, one state, Wyoming, never signed up to participate in the program at all. As a result, there is no U.S Refugee Resettlement Program of any kind—either state-administered or VOLAG-operated under the Wilson-Fish alternative program–in the state of Wyoming.

As Breitbart News reported previously, the nine major VOLAGs who operate and benefit from the U.S. Resettlement program receive over $1 billion per year in federal payments for their services.

The federal government has never tested whether it has the legal authority to establish a refugee resettlement operated by a VOLAG without the approval of the state government of Wyoming. Section 411 (a) (2) of the law, the “consultation” clause of the enabling legislation may explain that reticence:

The Director [of the Office of Refugee Resettlement within the Department of Health and Human Services], (either with the Coordinator [for Refugee Affairs]), shall consult regularly with State and local governments an d private nonprofit voluntary agencies concerning the sponsorship process and the intended distribution of refugees among the States and localities.

Many press reports and legal scholars claim that states do not have the right to refuse to allow refugees to be settled in their states due to the Supremacy Clause of the Constitution, Article VI, Pargraph 2, which, as the Legal Information Institute of Cornell Law School describes it, “establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.”

The Supremacy Clause refers to federal law—as in a federal statute—and not federal regulation, and particular not to federal regulation that is “unlawful,” as can be argued in the case of the federal regulation on which the Wilson-Fish alternative program is based.

Subsequent to the passage of the Refugee Act of 1980, if a state did not sign up – as was the case in Wyoming—the fed government simply did not place refugees in that state as part of the Refugee Resettlement program.

A total of 49 states signed up to administer their programs in their states, on the promise by the federal government that it would reimburse the states for the Medicaid expenses they incurred as payments made to refugees settled by the program in their states.

Originally, the law provided that assistance to the refugees for 36 months. Over the years, that period of assistance has declined to eight months and, more recently three to four months.

In 1984, Senator Pete Wilson (R-CA), concerned at the disproportionate number of refugees sent to the state of California and the high cost of the program borne by the California state government in the form of payments made to refugees settled under the program who seemed to be unable to establish self-sufficiency in a timely manner, introduced an amendment to the 1984 Immigration and Naturalization Act to address that problem.

On October 2, 1984 when Senator Wilson  introduced Amendment No. 6965 to the Immigration and Naturalization Act (which would subsequently be known as the Wilson-Fish amendment), he stated:

The specific intention of this amendment is to encourage refugee self-support and employment in California, a State which consistently receives at least 22 percent of all incoming refugees. A disproportionate number of refugees end up on welfare rolls. The language in this amendment will allow alternative approaches to this welfare dependency cycle. (emphasis added)

The language of the amendment, which was incorporated into the law passed in 1984, reads:

[T]he Secretary shall develop and implement alternative projects for refugees who have been in the United States less than thirty-six months, under which refugees are provided interim support, medical services, support services, and case management, as needed, in a manner that encourages self-sufficiency, reduces welfare dependency, and fosters greater coordination among the resettlement agencies and service providers.

The Wilson-Fish amendment does not mention or even allude to using the Secretary’s authority to fund Wilson-Fish alternative projects as a way to usurp the authority of state governments, such as whether a state would even agree to a refugee resettlement program operating in the state.

By 1991, the federal government told the 49 states who had signed up to administer the U.S. Resettlement Program in their states that it would no longer reimburse them for the expenses incurred making direct state payments to the refugees settled in their states.

Seeing added state expense for what was about to become an unfunded federal mandate, several states were eager to leave the program. The Clinton administration, alarmed that the departure of several states from the program might came up with a regulatory solution to their problem that created non-existent federal privileges not included in the 1980 law, invented out of whole cloth on the purported basis of the 1984 Wilson Fish amendment.

Prior to this fanciful regulation, promulgated in 1995, there was a real possibility that there was no legal authority to settle refugees in states that chose to withdraw from the program.

As that 1995 regulation —45 CFR 400.301 – Withdrawal from the refugee program—reads:

§ 400.301 Withdrawal from the refugee program.

(a) In the event that a State decides to cease participation in the refugee program, the State must provide 120 days advance notice to the Director before withdrawing from the program.

(b) To participate in the refugee program, a State is expected to operate all components of the refugee program, including refugee cash and medical assistance, social services, preventive health, and an unaccompanied minors program if appropriate. A State is also expected to play a coordinating role in the provision of assistance and services in accordance with§ 400.5(b). In the event that a State wishes to retain responsibility for only part of the refugee program, it must obtain prior approval from the Director of ORR. Such approval will be granted if it is in the best interest of the Government.

(c) When a State withdraws from all or part of the refugee program, the Director may authorize a replacement designee or designees to administer the provision of assistance and services, as appropriate, to refugees in that State. A replacement designee must adhere to the same regulations under this part that apply to a State-administered program. . . Certain provisions are excepted because they apply only to States and become moot when a State withdraws from participation in the refugee program and is replaced by another entity. …[60 FR 33604, June 28, 1995, as amended at 65 FR 15450, Mar. 22, 2000]

In the two decades since that regulation was promulgated, 12 states—the so-called Wilson-Fish alternative program states—have withdrawn from the U.S. Refugee Resettlement program.

At the time of their withdrawal, these states do NOT delegate their authorities to the federal government; the federal government simply assumes those authorities.

This exactly the sort of statutorily unauthorized regulatory fiat that Professor Philip Hamburger of Columbia Law School argued in his recent book, Is Administrative Law UnLawful, is both unlawful and unconstitutional when the administrative regulation is not simply following a narrow instruction specified in the statute cited as the enabling authority: “precisely the sort of consolidated or absolute power that the US Constitution—and constitutions in general—were designed to prevent.”

Texas, one of the 37 states that have not withdrawn from the Refugee Resettlement Program, recently sued both the federal government and the local administering VOLAG in attempt to stop the continued settlement of Syrian refugees in the state.

The legal argument was based on the failure of the federal government to comply with the “consultation clause “ of the Refugee Act of 1980. After the federal government provided some information to the state of Texas about the Syrian refugees it settled last week, the state withdrew its request for a temporary restraining order stop all settlement of Syrian refugees in the state.

The outcome of that lawsuit is problematic, as the state of Texas, by continuing to administer the program and not withdrawing, is, in effect, consenting to the terms laid out in the 1995 regulations that established the statutorily questionable Wilson-Fish alternative program.

Though the 37 states who remain in the U.S. Refugee Resettlement Program voluntarily would be hard pressed to make a 10th amendment argument to end the program in their states, the 12 states who have withdrawn from the program but are nevertheless being forced to pay the expenses incurred by this federal mandate by regulatory fiat have a very strong case.

The Thomas More Law Center is prepared to file the lawsuit within days of finding a plaintiff from among these 12 states. While usually the governor of the state acts in that capacity, state legislators in some states, like Tennessee, appear to be considering the possibility of hiring the Thomas More Law Center if their governor does not step up.

Since the Thomas More Law Center is providing its services for free and has a long track record of success, it is difficult for proponents of limited government, the 10th amendment, and state sovereignty to understand why any responsible governor or state legislator in any of these 12 Wilson-Fish state would not be willing to step up to the plate as a plaintiff in this potentially landmark case.

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