David Hejmanowski: The power to close the door


“Given the tragic attacks in Paris and the threats we have already seen, Texas cannot participate in any program that will result in Syrian refugees being resettled in Texas.”

— Greg Abbott

Texas governor

“It would be incumbent on people to prove who they are so that we would be certain because we can’t be in a position of inviting the enemy in.”

— John Kasich

Ohio governor

“The Congress declares that it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands, including, where appropriate, humanitarian assistance for their care and maintenance in asylum areas, efforts to promote opportunities for resettlement or voluntary repatriation, aid for necessary transportation and processing, admission to this country of refugees of special humanitarian concern to the United States, and transitional assistance to refugees in the United States. The Congress further declares that it is the policy of the United States to encourage all nations to provide assistance and resettlement opportunities to refugees to the fullest extent possible.”

So begins the Refugee Act of 1980, adopted 35 years ago this spring and passed by a vote of 85-0 in the Senate and 328-47 in the House, with Democrats voting 220-15 in favor and Republicans supporting it by a vote of 108-32. The act is the most recent exercise of authority as to refugees — an authority that derives from Congress’ larger power to regulate naturalization and immigration under Article I of the U.S. Constitution.

The Refugee Act of 1980 has come under closer scrutiny since the Nov. 13 terrorist attacks in Paris as a wave of state governors — of both parties — have either stated that they would not accept refugee resettlements in their states or have urged the federal government to restrict the resettlement of Syrian refugees out of concern that those refugee resettlements will allow terrorists to enter the country posing as refugees. A reading of that act, and the one it amended, the Migration and Refugee Assistance Act of 1962, makes it clear that states have little authority in the realm of refugee resettlement. Little, but not none.

The vast authority under the 1980 act resides with the president. The act provides that “the number of refugees who may be admitted under this section in any fiscal year after fiscal year 1982 shall be such number as the president determines, before the beginning of the fiscal year and after appropriate consultation, is justified by humanitarian concerns, or is otherwise in the national interest.” The act also gives the president the authority to increase that number if he determines that an “unforeseen national emergency exists.”

The limiting phrase “after appropriate consultation” is specifically defined in the act and requires Cabinet-level officials to meet with certain members of Congress and provide them with specific information including the number of refugees, the plans for their movement and resettlement, an analysis of the anticipated “social, economic and demographic impact” on the U.S. and a description of how other countries are assisting.

While the act provides no specific powers to the states, it does require that federal agencies implementing the act must meet regularly with states, coordinate with them, and “insure that a refugee is not initially placed or resettled in an area highly impacted by the presence of refugees.” Federal agencies must also take into account the employment opportunities in an area, housing, health care, education, mental health services and the likelihood that the refugees will become self-sufficient.

Thus, the federal government, and in this specific circumstance, the president, hold most of the legal cards, but the lack of cooperation by state and local authorities can make the resettlement process significantly more difficult. None of this goes to the merits of the extremely difficult discussion weighing our historical inclination to open our shores to the “huddled masses yearning to breathe free” against the national security interests posed by the current crises. That is a public policy discussion left to our national discourse, not to a discussion of legal authority.


David Hejmanowski

Case Study

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Common Pleas Court.

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