Syrian Refugees Knocking on the Door

November 23, 2015

By: Sean Anderson

Illinois Governor Bruce Rauner says the state will stop letting refugees from Syria resettle here. The civil war in Syria has turned millions of people into refugees, but only about 2200 have been allowed into the United States. The Obama administration plans to admit 10,000 more refugees from Syria in the next fiscal year. Now, in response to news that one or more of the terrorists who murdered at least 129 people in Paris may have been, or been posing as, Syrian refugees, governors of more than half the states have said they will temporarily stop accepting any Syrian refugees.

I’ll be blunt: I think the governors’ move to bar refugees is sheer, mean-spirited demagoguery. But that’s not the point of today’s commentary. The point is that, if you’re like me in deploring the governors’ move, then you have reason to rejoice. Because, you see, Rauner and the other governors almost certainly have no legal power to bar resettlement of Syrian refugees, or for that matter any other refugees the federal government properly admits.

The Constitution commits some powers to the states and other powers to the federal government. The Supreme Court has said repeatedly over the past 100-plus years that foreign policy, including immigration policy, is firmly on the federal side of tha

t ledger. The Court reiterated that point just three years ago, in striking down several Arizona laws regarding immigration. If you’re wondering why federal supremacy is so important in this area, just imagine the incoherence of U.S. foreign policy if fifty state governments got to tailor their own relations with other countries, including the terms on which the state would allow immigrants from those countries.



With respect to refugees, the federal government has exercised its broad power, in part, by adopting a law called the Refugee Act of 1980. Under that law, the President has broad power to admit refugees, including those fleeing emergencies in their home countries—emergencies like the Syrian civil war. The Refugee Act says the federal government should consult with state authorities before resettling refugees in a state’s territory, but it doesn’t give states any way to enforce that consultation rule, and in any event the feds don’t have to accept the state’s recommendations.

In short, if the federal government says Syrian refugees will be resettled in Illinois, then Governor Rauner almost certainly has no legal authority to stop it. He might ask the feds not to send refugees here, and he might find ways to make resettlement more difficult, such as by limiting refugees’ access to state services, but he can’t prevent it.

At the national level, of course, Congress can pass legislation barring or restricting resettlement of refugees. In fact, the House of Representatives has already passed some restrictions on Syrian and Iraqi refugees, by a veto-proof margin. The measure seems unlikely to succeed in the Senate, though, let alone by the two-thirds vote necessary to override the President’s threatened veto. In the meantime, the governors’ announcements about suspending resettlement of Syrian refugees remain little more than empty symbolism—and misguided symbolism at that