State of Alabama Sues Obama Administration Over Refugee Resettlement

AP Photo/Kerstin Joensson

The state of Alabama is suing the Obama administration in federal court to stop the resettlement of refugees in the state, alleging that the federal government is violating the consultation clause of the Refugee Act of 1980.

Several legal experts tell Breitbart News that the “failure of the federal government to consult” argument advanced by the state of Alabama is unlikely to have any more success in federal court than the same argument recently advanced in a federal lawsuit by the state of Texas.

“There is nothing enforceable against the federal government in the Refugee Act of 1980 subsequent to a consultation with the state, as the Refugee Act of 1980 requires” one legal expert knowledgeable in the details of the U.S. Refugee Resettlement program tells Breitbart News.

“Put another way, so after they [the states] assert the statutory requirement of consultation, what right do they assert subsequently?” the expert asks.

“What if they don’t like what the feds tell them? Consultation doesn’t equate to permission. Anne Richard [an official with the Department of Health and Human Services] said in South Carolina that, hey, this is a federal program,” the expert adds.

“Consultation is a vague term that in the end has very little impact on the refugee resettlement program,” Richard Thompson, president and chief counsel of the Thomas More Law Center, a conservative public interest law firm, tells Breitbart News.

“Consultation doesn’t mean veto power,” Thompson adds. He goes on:

What the state of Alabama is saying to the federal government is—‘you haven’t consulted with us.’ Consultation has really never been defined. The federal government can say, we’re going to put this many people in Alabama. We’re going to put a hundred refugees selected by us in Alabama. The state of Alabama ‘says no we don’t have the resources.’ The federal government says ‘we think you do have the resources, and even if you don’t we don’t care because we’re putting those one hundred refugees in Alabama.’

“Then the federal government says, ‘we’ve consulted with the state of Alabama’ and goes ahead and puts the refugees in Alabama and there’s nothing the state of Alabama can do under the consultation clause of the Refugee Act of 1980,” Thompson adds.

The state of Alabama, the Commissioner of the Alabama Medicaid Agency, the Acting Alabama State Health Officer, and the Secretary of the Alabama Law Enforcement Agency are plaintiffs in the case.

Robert Spotswood, a partner in the Birmingham law firm of Spotswood, Sansom, and Sansbury LLC, and David Byrne, chief legal adviser to the Office of the Governor Robert Bentley, are listed as counsel for the plaintiffs.

Surprisingly, Alabama Attorney General Luther Strange is not listed as counsel for the plaintiffs. This unusual circumstance is an indication that Strange may not support the action of bringing the suit.

Breitbart News contacted Spotswood for comment but did not receive a response.

The state of Texas, Thompson notes, has tried a similar argument in its recent lawsuit against the Obama administration, and it has not gone well so far and is unlikely to do so in the future.

The lawsuit, and the associated preliminary injunction requesting an immediate cessation to the settlement of additional refugees in Texas, was announced with much fanfare but quickly fizzled.

“The state of Texas had a similar lawsuit,” Thompson notes.

In early December, the state withdrew its efforts to block the settlement of Syrian refugees in the state after they had arrived. Then, on December 9, the federal judge hearing the lawsuit rejected the state’s request for a temporary restraining order stopping the settlement of refugees.

“The case is still alive,” Thompson adds, but some legal experts believe it is on legal life support.

“I got a copy of the Alabama lawsuit,” Thompson tells Breitbart News, “and basically the federal government says because we are responsible throughout the 50 states, we’re going to send the documents related to refugee settlement to the National Governors Association. That’s going to be the consultation.”

“Alabama says we want a particularized consultation,” Thompson adds.

Whether the consultation is “particularized” or “general,” the federal government can claim it has complied with the consultation requirement of the Refugee Act of 1980 in a number of ways and go ahead and settle refugees from any country in any of the 49 states that are either currently participating in or have once participated in the U.S. Refugee Resettlement program. (Wyoming is the lone state that never signed up, nor ever subsequently withdrew from, the U.S. Refugee Resettlement program as authorized in the Refugee Act of 1980.

Alabama is one of twelve “Wilson-Fish alternative program states” that have opted out of the federal refugee resettlement program.

As Breitbart News reported previously:

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.

Alabama Governor Robert Bentley, a Republican who has chosen not to use a 10th amendment argument available to Wilson-Fish, states in a legal argument developed by the Thomas More Law Center that the program, as operated by the federal government in the state, is an unconstitutional unfunded federal mandate and violates the state’s sovereignty.

In Alabama’s suit, they fail to mention they are a Wilson Fish alternative program state, and fail to make the 10th Amendment argument that will be used by any Wilson-Fish state hired by the Thomas More Law Center.

Breitbart News asked the Thomas More Law Center’s Thompson if anyone from the state of Alabama contacted him prior to the filing of the lawsuit on Thursday to inquire about the merits of the 10th amendment case the center has developed and is willing to litigate for free on behalf of any Wilson-Fish alternative program state.

“No,” he tells Breitbart News, adding “I don’t why.”

“Obviously we have made it very public we are ready to file a lawsuit challenging the U.S. Refugee Resettlement Program under the 10th amendment on behalf of any Wilson-Fish alternative program state,” Thompson adds.

“They don’t have to use the Thomas More Law Center. We would be happy to help them in any capacity,” he says.

“If they are really serious about what is going on, there should be a serious constitutional challenge to the U.S. Refugee Resettlement Program under the 10th amendment,” Thompson notes.

The costs imposed upon the states by the settlement of refugees in their state are significant, and borne by other local entities as well.

“It still will require the state to pay state tax dollars to take care of refugees settled within their states,” Thompson adds.

The winning legal argument for the Wilson-Fish alternative program states is a 10th amendment one, Thompson says.

“We are responsible for the state budget, state tax dollars, even though we have no idea what the federal government is obligating us to without our consent. They are commandeering our tax dollars. That’s the argument the Wilson-Fish alternative program states should be making,” Thompson tells Breitbart News.

“Not only are state tax dollars being spent on these refugees, municipalities, and public school systems are spending significant tax dollars on the refugees as well,” Thompson adds.

“This is what I would call a classic 10th amendment challenge,” Thompson concludes.

State legislators in Tennessee, another Wilson-Fish alternative program state, in both the House of Representatives and the State Senate are considering hiring the Thomas More Law Center to sue the federal government on tenth amendment grounds that the refugees settled in their state by the feds constitute an unconstitutional unfunded federal mandate.

Tennessee Governor Bill Haslam, a Republican, has not rejected the idea of hiring the Thomas More Law Center to represent the state in a constitutional challenge to the U.S. Refugee Resettlement Program, but there is no indication that he will step up to the plate, having been pressured publicly and privately for several weeks to do so.


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