4th Circ. Likely To Keep Block On Trump’s Refugee ‘Edict’
Law360 (October 27, 2020, 9:35 PM EDT) — A three-judge Fourth Circuit panel appeared unlikely to revive President Donald Trump’s executive order allowing local governments to refuse to take in refugees, with one judge slamming the order at a Tuesday hearing as an “edict without consequence.”
U.S. Circuit Judge Barbara Milano Keenan, an Obama appointee, worried that Trump’s order — which was halted by a lower court and would require states and localities to affirmatively opt in to participate in the refugee resettlement program — would cause chaos on the ground. For instance, under the order, an individual county could refuse to take refugees, while the state that county is in could consent to participating in the program.
“Something is really bothering me about this,” Judge Keenan said. “A locality is not authorized to act in contravention of the state because it’s merely a political subdivision of the state, and its powers only derive from the state. So why doesn’t that create a chaotic situation in implementation?”
Further, there appears to be “absolutely no structure, no procedure” to the process by which the U.S. Department of State would override a jurisdiction’s decision not to consent to taking refugees, Keenan added.
When a locality consents to accepting refugees or not, it is not a “legal authorization,” replied Amanda Mundell of the U.S. Department of Justice, insisting that the State Department has discretion to consider information and make the ultimate decision on where a refugee should be placed.
Judge Keenan wasn’t moved.
“It just shows you the total confusion and chaos. Nobody thought this through. It’s like an edict without consequence,” she said.
U.S. Circuit Judge Pamela Harris, another Obama appointee, also pressed the government’s attorneys on how the exception built into the order, allowing the department to resettle refugees in nonconsenting states if it would break the law to do otherwise, would play out in practice. The order also says that a state’s consent will be “taken into account to the maximum extent consistent with law.”
“Someone has to be able to say that if I put him anywhere but Atlanta, that would be inconsistent with the statutory scheme,” Judge Harris said, presenting a hypothetical example where Atlanta refused refugees but a refugee had relatives in the city. “How could that ever be the case?”
“This is a genuine question,” the judge pressed. “Is there a scenario that you guys have in mind that would trigger this exception?”
Mundell said the funding notice carrying out the executive order “very clearly” states that all refugee applications would be considered, even if a state did not consent. Factors including Atlanta’s resources and the refugee’s community ties would also be evaluated, she said.
“That’s not all it says at all, counsel,” Judge Harris countered, sounding frustrated, before proceeding to scold Mundell for what she characterized as a pattern of government lawyers arguing in court that Trump’s executive orders don’t mean what they say.
“I don’t want to charge you with what’s going on in other cases, but you’re sort of catching me on a bad day, because I’ve had a long series of cases now where the government comes into court and tries to pretend that these executive orders don’t mean anything — ‘We’re just spinning our wheels, we’re just making noise, and don’t worry none of this actually means what it seems to mean,'” Judge Harris said. “I feel like we’re not talking about the actual executive order we have in front of us.”
The federal government is fighting a Maryland federal judge’s January ruling that halted Trump’s executive order allowing states and local governments to decline to resettle refugees. The executive order required states and localities to affirmatively consent to participating in the refugee resettlement program, where U.S. resettlement agencies with agreements with the federal government work to arrange housing and other accommodations for new refugees.
In his order, the president said states and local governments “are best positioned to know” what resources they can devote to refugee resettlement, “which maximizes the likelihood refugees placed in the area will become self-sufficient and free from long-term dependence on public assistance.”
Texas Republican Gov. Greg Abbott was the first to take advantage of the order and announce that his state would not take refugees. More than three dozen states, however, have submitted letters consenting to participating in the refugee program.
A group of faith-based organizations challenged the executive order in November, and U.S. District Judge Peter J. Messitte sided with the organizations, finding that the order improperly gave states veto power and potentially stepped on the federal government’s constitutional authority to regulate immigration.
“It is hard to see how the order, if implemented, would not subvert the delicate federal-state structuring contemplated by the Refugee Act,” Judge Messitte wrote.
At the Fourth Circuit, the federal government argued that Judge Messitte’s concerns were unfounded, saying that the order gives states a voice, not a veto. Mundell argued that the order’s consent mandate is part of the already-established consultation process, where the federal government consults with states before resettling refugees there.
“It’s just a means of clearly communicating states’ and local governments’ views,” Mundell said.
Justin Cox, an attorney for the International Refugee Assistance Project, who is representing the refugee resettlement groups, asserted in court Tuesday that there is “no room here for the president to add additional requirements” to this process.
He also disputed that the consent requirement is the same as a consultation, warning that conflating the terms would have “enormous consequences” in other areas of law.
“Consultation is a conversation, a dialogue. It’s not a permission slip,” he said.
The litigation comes as the Trump administration has sought to slash refugee admissions and curtail asylum claims at the U.S. borders. Trump proposed accepting just 15,000 refugees — who, unlike asylum-seekers, apply from abroad — for fiscal year 2021, a historic low. The U.S. also fell far below its goal last fiscal year to take in 18,000 refugees, accepting less than 12,000 after the program ground to a halt during the coronavirus pandemic.
For comparison, in fiscal year 2016, President Barack Obama set the refugee cap at 85,000, and 84,995 refugees were admitted. Presidential candidate Joe Biden has pledged to raise the ceiling to 125,000 if elected.
U.S. Circuit Judges Pamela Harris, Barbara Milano Keenan and Robert B. King sat on the panel for the Fourth Circuit.
Justin Cox of IRAP argued for the refugee resettlement agencies.
Amanda Mundell of the DOJ’s Civil Division argued for the federal government.
–Additional reporting by Nadia Dreid. Editing by Breda Lund.
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