Typography
  • Smaller Small Medium Big Bigger
  • Default Helvetica Segoe Georgia Times

In the wake of the horrendous terrorist attacks on Paris, several American governors have declared their intention to refuse entry to Syrian refugees. While it is crucial for elected officials to safeguard the public, these refusals manage to be both counterproductive and without the support of law. Governors simply do not have the authority to control the entry of refugees into their states.

Ian Millhiser's excellent post at ThinkProgress touches upon some of the applicable law, and examines the governors' statements in light of the Supreme Court cases Arizona v. United States and Hines v. Davidowitz. As Millhiser correctly points out, it's well-settled law that the federal government has nearly absolute control over immigration policy and regulation – and states can only legislate in the field if their laws do not conflict with federal laws. And the definition of “conflicts with” is very broad: anything that prevents the “accomplishment and execution of the full purposes and objectives” of a federal law. Under the Refugee Act of 1980, the federal government has the power to admit refugees as it sees fit, and state laws or actions that conflict with this law are preempted by the power of the federal government.

Some governors have set up ultimatums and stated, despite the law, that they will refuse to accept any refugees in their states. Others have recognized their inability to block Syrian refugees, instead phrasing their opposition to refugee entry as a request to the Obama administration. The choice of words is likely more politics than principle.

But there's more to this than just a federal/state divide. Attempting to exclude refugees from a state based on their country of origin also touches upon issues of equal protection under the law – issues that were presumably resolved nearly 70 years ago.

During the Second World War, the United States shamefully imprisoned people of Japanese origin due to their fears that these people were potentially working with Japan to conduct sabotage and terrorist attacks within the United States. California acted to ban Japanese nationals from fishing off the California coast. Torao Takahashi, a fisherman of Japanese origin, sued to regain his fishing license after his internment ended. Not surprisingly, the case wound up before the Supreme Court. And in 1948, the Supreme Court struck the California law down. Individuals lawfully admitted into the United States “had a federal privilege to enter and abide in 'any State in the Union' and thereafter under the Fourteenth Amendment to enjoy the equal protection of the laws of the state,” which included the right to work for a living. Any state legislation or action that attempted to “impose discriminatory burdens upon the entrance...of aliens lawfully within the United States” was deemed to conflict with the federal power to regulate immigration. Furthermore, the Takahashi Court articulated “a general policy that all persons lawfully in this country shall abide 'in any state' on an equality of legal privileges with all citizens under non-discriminatory laws.'” This is well-settled law.

Refugees who have been admitted to the United States have come through an arduous process. Those refugees coming from Syria, in particular, have likely come fleeing the very people who committed and orchestrated the atrocities in Paris. Attempting to bar them from entry denies them options to escape the horrors of war, and does ISIS's dirty work for it. But rather than trying to assist those in need and living up to the best traditions of the United States, the governors attempting to bar refugees are instead hearkening back to some of the worst and most shameful events in our history.