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No Comment from DOJ on Tennessee Lawsuit Challenging Constitutionality of Refugee Resettlement Program

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The big question following news on Monday that the State of Tennessee is suing the federal government on Tenth Amendment grounds over its operation of the federal refugee resettlement program in the Volunteer State is how the Department of Justice, run now by Attorney General Jeff Sessions, will respond.

“Will the Trump administration defend the federal government against the lawsuit filed by the state of Tennessee on Monday that argues placing refugees in the state under the federal refugee resettlement program — and forcing the state to pay up to $165 million in health care, welfare, and other costs for those refugees –is a violation of the Tenth Amendment of the Constitution? ” Breitbart News asked the Department of Justice on Tuesday.

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The Department of Justice has not yet responded to that query.

Two of the named defendants in Tennessee’s constitutional challenge to the federal refugee resettlement program in the lawsuit filed by the Thomas More Law Center in the Western District Federal Court of Tennessee on Monday — Acting Assistant Secretary of State for the Bureau of Population, Refugees, and Migration Simon Henshaw; and Acting Director of the Office of Refugee Resettlement Kenneth Tota — were on the list of “Top Ten Obama Holdover Bureaucrats President Trump Can Fire or Remove” published at Breitbart News last month.

The other two named defendants are Secretary of State Rex Tillerson, who was confirmed by the Senate in January, and Secretary of Health and Human Services Tom Price, who was confirmed by the Senate in February.

The Office of Refugee Resettlement is part of the Department of Health and Human Services, and the Bureau of Population, Refugees, and Migration is part of the State Department.

Both Tillerson at State and Price at HHS are Trump appointees.

In its complaint filed on the Western District Federal Court of Tennessee on Monday, the Thomas More Law Center, a public interest law firm which is representing the Tennessee General Assembly and the state of Tennessee at no cost, presented a compelling Tenth Amendment argument that “The United States Constitution does not confer upon the federal government the power to direct expenditure of state funds to support a federal program and, moreover, prevents the federal government from regulating a state in its sovereign capacity.”

“The federal government is prohibited from using its power under the Spending Clause, U.S. Const., art I, § 8, cl. 1, to coerce states into supporting federal programs with state moneys,” the complaint notes:

While the federal government may offer incentives to states, conditions on spending that threaten a state with the loss of significant federal funds must not be so coercive as to amount to unconstitutional compulsion.

When the federal government threatens the loss of the federal contribution to Medicaid, or “over 10 percent of a state’s overall budget,” such action violates the Tenth Amendment to the United States Constitution and is not supported by the Spending Clause.

Plaintiffs are threatened under 42 U.S.C. § 1396c with the loss of nearly $7 billion, amounting to 20% of Tennessee’s overall state budget, unless the State of Tennessee continues to support the federal refugee resettlement program by funding healthcare for refugees enrolled in TennCare, its state Medicaid program.

The complaint also notes there are additional costs imposed upon the State of Tennessee by the federal government.

“Plaintiffs are also forced to support the federal refugee resettlement program by expending funds and making available state instrumentalities through other programs, such as public schooling and English Language Learner services,” the complaint notes.

As a result, Tennesseans are damaged by the actions of the federal government.”The state funds commandeered to support the federal government’s refugee resettlement program deprive Plaintiffs of scarce financial resources that are critical for protecting the welfare, health, and safety of all Tennesseans,” the complaint adds.

As Don Barnett, a fellow at the Center for Immigration Studies noted in April, the total amount of those commandeered state funds is quite substantial, estimated at $165 million annually in costs to the State of Tennessee:

1.Per a 2013 state study, refugees [participating] in TennCare (Medicaid) cost Tennessee taxpayers $25.6 million. (This does not include the federal portion of the cost, which is 3 times larger.)

But the study assumed that refugees use Tenncare at the same rate as all Tennesseans, i.e about 18.8%. A federal study has shown that even refugees here for 5 years use Medicaid at a rate of 44%. Also the study left out whole categories which are treated just like refugees when it comes to contractor compensation and rights and entitlements for individuals in the program. Groups left out include Asylum Seekers, Cuban/Haitian Entrants, Special Immigrant Visa holders (Iraqis mostly) and others.

My wildly conservative estimate for this cost is $60 million annually. That’s just the Tennessee portion of one program, Medicaid.

2. Per the same study, public education for refugees cost Tennessee local and state taxpayers $72.3 million in 2013. Again, this excludes Asylum Seekers and others. This figure today is at least $85 million, a very conservative estimate.

3. Tennessee spends about $80 million per year for ESL [English as a Second Language]. Some of this number is already included in the public education figures above. Refugees are numerically a relatively small proportion of ESL users, but they have an outsized impact because they bring new languages that Tennessee has no experience with. The cost for ESL for refugees, asylum seekers, etc. is at least $20 million annually.

The complaint is quite specific in its prayer for relief; that is, what the State of Tennessee is asking the court to do:

1. That a declaratory judgment be entered pursuant to 28 U.S.C. § 2201 et seq. declaring that Defendants have exceeded the federal government’s powers under the Spending Clause and violated the Tenth Amendment;

2. That Defendants be preliminarily and permanently enjoined from resettling additional refugees within the State of Tennessee unless and until the United States government pays for such resettlement and absorbs all costs for the resettlement program that are currently being incurred by the State of Tennessee;

3. That further preliminary and permanent injunctive relief be granted (a) compelling Defendants to comply with the Spending Clause and the Tenth Amendment with respect to refugee resettlement; and (b) compelling the United States government to fund refugee resettlement from federal dollars and without any involuntary contribution from the State
of Tennessee.

Though the State of Tennessee has expected to file this lawsuit since April of last year, when the Tennessee General Assembly passed a joint resolution announcing its intentions to do so, the lack of immediate response from DOJ suggests that the new leadership team there is still determining the proper course of action for the Trump administration in response.

The DOJ could choose to vigorously defend the case in court. Alternatively, it could initiate discussions that result in an out of court settlement.

One thing is certain. There is an ideological split between the four named defendants.

Secretary of State Tillerson and Secretary of Health and Human Services Price were picked by President Trump and are completely aligned with his agenda.

In contrast, the two other named defendants — Henshaw at State and Tota at the Office of Refugee Resettlement — are Obama holdovers, and report to Trump’s new cabinet members.

“The two agencies responsible for the implementation of the federal refugee resettlement program–the Office of Refugee Resettlement at the Department of Health and Human Services and the Bureau of Population, Refugees, and Migration at the Department of State—are populated by a revolving door of ideologically aligned bureaucrats from the Voluntary Agencies that are paid $1 billion annually by the federal government to resettle refugees,” Breitbart News reported last month, based on original reporting last year:

Any bureaucrat who has served at either agency for any period of time has been utterly compromised by the refugee industry lobby and has to go in a Trump administration.

Ken Tota is the Acting Director for the Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), Department of Health and Human Services (HHS). He has served as ORR Deputy Director since 2008, and also served as Acting ORR Director in 2006 and 2015,” according to the ORR website . . .

Henshaw, Acting Assistant Secretary, Department of State Bureau of Population, Refugees, and Migration, “has been with PRM since 2013,” according to his State Department bio.

Mr. Henshaw is a career officer in the U.S. Foreign Service, currently serving as Principal Deputy Assistant Secretary of the Bureau of Population, Refugees, and Migration. His previous assignment was Director of Andean Affairs in the State Department’s Bureau of Western Hemisphere Affairs. From 2008 to 2011, he was the Deputy Chief of Mission at the U.S. Embassy in Tegucigalpa, Honduras. Mr. Henshaw joined the State Department in 1985.

Governors and state legislatures around the country are carefully watching the progress of this case.

Several other states that have withdrawn from the federal refugee resettlement program could, conceivably, file similar lawsuits in the near future.


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