Tennessee One Step Closer to Filing 10th Amendment Lawsuit to End Refugee Resettlement Program

Migrants walk between tents on February 18, 2016 in the refugee and migrant camp in Grande-Synthe, France
Philippe Huguen/AFP/Getty Images

The state of Tennessee is one step closer to filing a Tenth Amendment lawsuit in federal court to end the United States Refugee Resettlement program in that state.

The Finance, Ways & Means Committee of the State Senate overwhelmingly passed Senate Joint Resolution 467 in a bi-partisan nine to one vote.

The resolution now goes to the State Senate floor, where it is likely to pass, then on the the State House, where it is also likely to pass.

In Tennessee, the state legislature (called the General Assembly) has the authority to file this lawsuit, which may prevail in the courts on Tenth Amendment grounds, if Republican Governor Bill Haslam fails to act.

Eight Republicans and one Democrat voted for the resolution: Sen. Mark Norris (R-Collierville), who also serves as Senate Majority Leader, Sen. Ferrel Haile ( R- Sumner County), Sen. Joey Hensley ( R- Giles County), Sen. Bill Ketron (R-Murfreesboro), Sen. Randy McNally (R-Oak Ridge), Sen. Doug Overbey (R-Blount County), Sen. John Stevens (R – Benton County), Sen. Bo Watson (R-Hamilton County), and Sen. Reginald Tate (D- Shelby County).

Republican Sen. Steve Dickerson (R-Nashville) voted against it.

The resolution was filed in the State Senate by Lt. Governor Ron Ramsey a little less than a month ago on January 22, and has moved quickly through the legislative process.

Unlike previous lawsuits filed by Texas and Alabama, which were not brought on 10th amendment grounds, this lawsuit could result in a victory. Such a victory would not prohibit refugees settled in other states by the Obama administration from entering the state of Tennessee. It would, however, prevent the State Department from settling those refugees initially in Tennessee under any circumstances, since such settlement requires the state of Tennessee to pay, in part, for their upkeep.

“Wilson-Fish alternative program” states including Tennessee and eleven others (Alaska, Alabama, Colorado, Idaho, Kentucky, Louisiana, Massachusetts, Nevada, South Dakota, North Dakota, and Vermont) who have opted out of the US Refugee Resettlement program have a strong 10th amendment suit against the federal government to stop the program in their states since it is “an unfunded mandate,” proponents of the resolution argue.

State Senate Majority Leader Norris, who has been leading the effort to pass the bill for several months, made just that argument to the committee prior to the vote (which can be seen here, beginning at the 1:03 mark).

“The purpose of  Senate Joint Resolution 467 is to initiate legal proceedings for declaratory relief in light of … the mandatory expenditure of state funds under a federal program from which the state has formally withdrawn,” Norris said.

“It’s a simple proposition asking for declaratory relief,” he continued.

“Declaratory relief offers a unique mechanism by which advocates may seek to remedy ongoing violations of statutory or constitutional law,” he added. “Sometimes it’s cast in the nature of a friendly lawsuit to bring clarity to anotherwise cloudy situation,” Norris noted.

“This arises on two fronts,” Norris explained.

“First, federal law requires the federal govt to consult with the state of Tennessee concerning the placement of refugees before and, I would submit, during their placement within the state of Tennessee. That consultation at least as of last week had not yet occurred,” he noted.

“There is similar litigation pending elsewhwere in the country on this point,” Norris said, citing the Alabama case.

“Secondly, we have a situation where the state of Tennessee under Governor Phil Bredesen formally withdrew from the U.S. Refugee Resettlement program in 2007,” Norris said.

“In 2012, the Supreme Courte ruled in the now famous NFIB v Sebelius case in that case the Supreme Court said ‘a state cannot be compelled or coerced to participate in a federal program for which it has chosen not to participate.’

“We have here the expenditure of state funds under I think as many as 11 different programs including Medicaid,” Norris noted.

“The problem is we are not specifically appropriating funds as required by the Tennessee State Constitution,” he emphasized.

Norris then noted that Tennessee has a history of challenging federal regulations. “The state of Tennessee is not a stranger to litigation when it comes to immigration related mattered,” Norris said, referencing the legal challenge mounted by more than 20 states challenging the DACA,  Deferred Action for Childhood Arrivals, regulations,” he pointed out.

Subsequently, Norris noted:

What has happened … is that since that time the federal government has engaged in significant cost shifting. There was a time when the federal government paid 100 percent of the costs associated with these various programs. Today that is no longer the case.”

But it’s a problem.

In essence.. what is happening here is that the federal government has done indirectly what it could not do directly. They’ve delegated [operation of the program] to the voluntary agency, Catholic Charities, but have increasingly required the State of Tennessee to pick up the cost.

It’s a problem that needs to be addressed for declaratory relief by the federal courts.

We need a declaration of our [sovereign state] rights under these circumstances.

The Thomas More Law Center, a conservative public interest law firm, has offered to represent the state of Tennessee free of charge should the state file the such a lawsuit as a plaintiff against the federal government, either by the Tennessee Attorney General, Governor Bill Haslam, or the Tennessee General Assembly.

Governor Haslam, while not rejecting the possibility that he might file such a lawsuit, has also offered no indication that he will do so. Similarly, the Tennessee Attorney General has been noncommittal.

The Tennessee General Assembly, in contrast, has indicated that it is firmly committed to filing the lawsuit should both the Governor and Attorney General defer.

Should the state of Tennessee ultimately file the 10th amendment lawsuit against the federal refugee resettlement program, it may encourage the governors or state legislatures in the 11 other “Wilson-Fish alternative program” states to follow the Volunteer State’s example.

It may also encourage governors in states that currently participate in the U.S. Refugee Resettlement program to withdraw their states, thereby making them “Wilson-Fish alternative program” states for whom the 10th amendment argument applies.


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