“A state can check out of the refugee program, but it can never leave”
The 1980 Refugee Act requires that resettlement “should be conducted in close cooperation and advanced consultation with state and local governments” and originally authorized three years of reimbursement for the states’ portion welfare costs. The federal government pledged that refugee resettlement would not turn into an unfunded mandate. But according to the panel speakers, the original intent and the statute itself are no longer being followed. This has led to court cases, like one the Thomas More Law Center filed on behalf of the state of Tennessee challenging the constitutionality of the resettlement program.
Don Barnett, a Center fellow and author of a recent report on refugee resettlement and the states, said that the U.S. has taken an average of 80,000 refugees per year since passage of the 1980 Refugee Act. Speaking to the selection process, Barnett explained, “Until the mid-’90s, the U.S. selected most refugees that came to the U.S. Today, about 95 percent of refugees to the U.S. are selected by the U.N. refugee agency UNHCR or are relatives of those selected by the U.N. in earlier waves.”
Refugee work is no longer sacrificial charity, in large part due to the 1980 Refugee Act, and refugees are now being allowed access to public assistance. Costs have been shifted to the states and local governments. “By 1991, it [federal funding] was completely gone – no more support at all for the state part of federal welfare programs…[and] private sponsors have been replaced by federal contractors, which are paid on a per-refugee basis.”
When states started to complain, the Clinton administration in 1994 promulgated a regulation allowing resettlement contractors to continue operations in a state regardless of the state’s wishes. “It guaranteed that a state could never get out of the program or escape its fiscal impact on state revenues. And it all came about by regulatory fiat rather than by statute.”
The Thomas More Law Center is now representing one of these states, Tennessee. Richard Thompson, president of the Center, spoke at the panel discussion about the lawsuit the Center filed, which “had as its sole aim to get the federal government to say what are the rights of the state of Tennessee vis-à-vis the federal government.” He continued, “By this lawsuit, Tennessee is displaying constitutional responsibility to be a prudent steward of the state’s tax dollars and the welfare of all of its citizens.”
When the federal government laid the onus of taking care of the refugees on the state, Tennessee pulled out of the program. But “the refugees still kept coming in and the state taxpayers had to foot the bill” or the federal government threatened to cut off Medicaid payments, which represented $7 billion dollars or 20 percent of the state budget.
Thompson quoted Justice Scalia’s majority decision in Printz v. United States, in which Justice Scalia writes, “The state legislatures are not subject to federal direction. The federal government may not compel the states to enact or administer a federal regulatory program.” He also quoted Justice Roberts, in the NFIB v. Sebelius decision, “Permitting the federal government to force the states to implement a federal program would threaten the political accountability key to our federal system. The threatened loss of 10 percent of a state’s overall budget is economic dragooning that leaves the states with no real option but to acquiesce . . .”
Thompson voiced his belief that if allowed “to go forward, this case could very well end up in the Supreme Court of the United States.”
The third panelist Jeff Johnson, City Council member in the refugee relocation city of St. Cloud, Minn., voiced his concern that his constituents were being forced to spend their money on a program without any input, causing a burden on services. He predicted that this “could very well be the number-one issue at the voting booth in Minnesota this fall.”
Johnson explained that Lutheran Social Services, the resettlement contractor in his area, is a non-profit religious organization taking federal dollars (about $3,300 per refugee), one-third of which it pockets as profit. Yet, he said, this organization is not being transparent with his constituents. He put forth a resolution, which mostly quoted from the Refugee Act of 1980, to show the federal governments obligations, which include developing the policies and strategies for the placement and resettlement of refugees in consultation with state and local governments. The Act also requires the director of the Office of Refugee Resettlement to “‘provide for a mechanism whereby representatives of local affiliates of voluntary agencies regularly, not less than quarterly, meet with representatives of state and local governments to plan and coordinate in advance of their arrival the appropriate placement of refugees amongst various states and localities.'”
During Q&A, Krikorian, the moderator and CIS executive director, made the point that refugee resettlement should be a last resort for people who are in immediate danger. But according to the UNHCR, “the emergency cases…accounted for 0.4 percent – 0.4 percent of all the people they referred for resettlement. Those are the people who should be resettled.”