On Tuesday Tennessee Attorney General Herb Slatery gave the Tennessee General Assembly a green light to sue the federal government on Tenth Amendment grounds over its resettlement of refugees in the Volunteer State.
In April, both houses of the Tennessee General Assembly passed Senate Joint Resolution 467, which authorized the initiation of the lawsuit, to be litigated by either the Attorney General or the Thomas More Law Center, a conservative public interest law firm that has offered to represent the state in the matter at no cost.
In May, Governor Haslam allowed SJR 467 to become effective, pending the Attorney General’s decision, when he chose not to veto the resolution within the ten day period after it was presented to him.
In his letter to the clerks of both the State Senate and the House of Representatives dated Tuesday, Attorney General Slatery said that while he would not proceed to litigate the lawsuit, he would not object to the hiring of outside counsel by the Tennessee General Assembly to pursue the claim in federal court.
“[T]his Office, after a thorough review of the issues, respectfully declines at this time to file litigation challenging the implementation of the Refugee Resettlement Program. As required by SJR 467, this letter serves as written notice of our choice ‘not to initiate or intervene in a civil action pursuant to this resolution’, ” Slatery wrote.
“This Office by this letter,” he added, “delegates its constitutional and statutory authority to commence litigation on behalf of the State of Tennessee to staff counsel for the General Assembly for the limited purpose of pursuing litigation to address the issues raised in SJR 467.”
“This Office makes this delegation because of the unique facts presented, including the apparent ability of the General Assembly to obtain outside counsel to assist in pursuing this litigation at no cost to the State of Tennessee,” the Tennessee Attorney General concluded.
Tennessee state legislators quickly announced their readiness to engage the federal government in the legal battle over the state’s Tenth Amendment rights.
“We are now free to proceed with the litigation the General Assembly sought when it adopted SJR467 months ago. We seek a declaration of our rights as a sovereign state which upholds the principles by which we foster freedom,” State Senate Majority Leader Mark Norris (R-Collierville), the main sponsor of SJR 467, said in a statement on Wednesday.
“We have several capable attorneys and firms to consider as outside counsel for the State of Tennessee, and we have been in discussions with them as to how best to proceed,” Norris added.
Tennessee is one of fourteen states that have withdrawn from the federal refugee resettlement program established under the Refugee Act of 1980. In those states, the federal government has hired voluntary agencies (VOLAGs) to resettle refugees under the statutorily questionable Wilson Fish alternative program.
In Tennessee, the Office of Refugee Resettlement has hired the Tennessee Office for Refugees (TOR), a subsidiary of Catholic Charities of Tennessee, to operate the program.
As Breitbart News has reported, TOR has failed to comply with the Refugee Act of 1980’s requirement that all resettlement agencies report public health risks, included cases of active tuberculosis (TB) and latent TB infection (LTBI) among resettled refugees to county public health officials, and to monitor the treatment of those cases.
Curiously, Attorney General Slatery sought the advice of that same non-compliant resettlement agency prior to issuing his statement on Tuesday.
“We also met or talked with various individuals, on the state and federal levels, engaged in or knowledgeable about the federal refugee resettlement process. These individuals included staff from Catholic Charities which is the entity responsible for administration of the Refugee Resettlement Program in Tennessee,” Slatery wrote.
“We received and reviewed various documentation provided by Catholic Charities,” the Attorney General added.
One document Attorney General Slatery apparently did not review because Catholic Charities’ TOR claims it does not track the information, as required by the enabling Refugee Act of 1980, is the number of resettled refugees in Tennessee who developed active TB over the past five years.
He also apparently did not review any documents produced by TOR that describe the number of refugees diagnosed with latent TB infection (LTBI), who were received successful treatment to prevent LTBI from activating.
As Breitbart News reported previously, TOR has confirmed that 27 percent of recently resettled refugees in the Volunteer State tested positive for LTBI.
The expense for LTBI treatment, active TB treatment, and other medical treatments for resettled refugees, the degree of which are unknown due to TOR’s failure to track this information, is borne by the taxpayers of the state of Tennessee.
Don Barnett, a fellow at The Center for Immigration Studies recently estimated that the total annual cost of the federal refugee resettlement program in the state of Tennessee exceeds $165 million annually to the state’s taxpayers.
In his letter, Slatery claimed that two federal regulations promulgated by the Department of Health and Human Services in 1995 and 2000 provided the legal authority for the operation of the federal refugee resettlement program by TOR in the state, but he failed to cite any statutory authority.
It is that creation of statutorily unauthorized authority that lies at the heart of the Tennessee General Assembly’s Tenth Amendment claim against the federal government for forcing the state’s taxpayers to pay for an unfunded federal mandate, a “commandeering” of resources, as described in the 2012 NFIB v. Sebelius Supreme Court decision.
“Our research and analysis led us to conclude that, under the present circumstances, the 10th Amendment theories that underpin SJR 467 are unlikely to provide a viable basis for legal action,” Slatery wrote.
But the Tennessee General Assembly thinks otherwise.
“In 2012 . . . in the now famous NFIB v. Sebelius case . . . the Supreme Court said [in its ruling] ‘a state cannot be compelled or coerced to participate in a federal program for which it has chosen not to participate,’ ” State Senate Majority Leader Norris told Breitbart News in February.
The Tennessee General Assembly has made it clear it intends to proceed with the Tenth Amendment argument Attorney General Slatery is unwilling to make in federal court.