Police keep demonstrators and counter demonstrators apart during an 'America First' rally against ... [+]Getty Images

ishtartv.com - forbes.com

Stuart Anderson, Oct 1, 2019

Donald Trump’s new executive order appears designed to give veto power over resettling refugees to people who don’t like refugees and elected officials willing to play on those fears. What are the implications of this new order – and is it legal?

“[T]he Federal Government . . . should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees under the Department of State’s Reception and Placement Program,” according to a White House executive order issued September 26, 2019.

The order directs the Secretary of State and the Secretary of Health and Human Services, within 90 days, to “implement a process to determine whether the State and locality both consent in writing, to the resettlement of refugees within the State and locality, before refugees are resettled within that State and locality under the Program. The Secretary of State shall publicly release any written consents of States and localities to resettlement of refugees.”

I asked the State Department if this meant no refugees would be resettled during this 90-day period. On background, a State Department spokesperson said, “Refugees will continue to be resettled in America during the 90-day period provided in the executive order.”

The executive order could play out in ways that might be characterized as “ugly.” If several African refugee families have been resettled in a town in recent years, some residents could organize and argue to local or state officeholders against new admissions. Some people may not want anyone from the Middle East – or Asian or Jewish refugees – to live near them. The executive order may provide a government-sanctioned outlet for personal animosity toward foreign-born individuals and families.

Politicians looking to make a name for themselves might decide this is a good issue and argue they want to “protect” the community from African or Muslim refugees. One politician already did this – Vice President Mike Pence.

In 2015, then-Indiana Governor Mike Pence “withheld money to prevent local agencies from resettling Syrian refugees who have already gone through a federal screening process,” according to the Washington Post. In Exodus Refugee Immigration, Inc. v. Pence, a relief agency sued Pence and the state of Indiana.

The case was decided against Pence, and a preliminary injunction was affirmed blocking his action on October 3, 2016, before the U.S. Court of Appeals for the Seventh Circuit.

“He [Pence] argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana,” wrote U.S. Appeals Court Judge Richard Posner in the decision. “But that's the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he's afraid of them, and since race is therefore not his motive he isn't discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.”

Stephen Yale-Loehr, a Cornell Law School professor and an advisor to the National Foundation for American Policy, told me in an interview that Trump’s executive order runs contrary to the law. “The law doesn’t allow a state or locality to veto the placement of refugees,” according to Yale-Loehr. “The executive order acknowledges that under 8 U.S.C. § 1522(a)(2), the federal agency coordinating refugee policy should consult with state and local governments. But the executive order ignores subsection (a)(5), which states that ‘[a]ssistance and services funded under this section shall be provided to refugees without regard to race, religion, nationality, sex, or political opinion.’ If a town tells the federal government that it doesn’t want any African or Muslim refugees, they are arguably violating that subsection.” 

Discrimination might not be the only grounds to strike down the executive order. Yale-Loehr notes that while the statute requires the federal government to consult with state and local governments about the distribution of refugees, it doesn’t give such governments veto power over where refugees go.

Pastor Alan Cross raises a practical issue: “Since refugees can be resettled within 50 miles of a resettlement office, will every town have to also give consent along with their state before they can receive a refugee family from Iraq or Sudan?” He wonders if there will be city council debates about whether a Rohingya family from Myanmar can be resettled. “This could become incredibly divisive on a local level,” he notes. Some analysts believe the purpose of the executive order could be to encourage such divisiveness as a way to lessen support for refugee resettlement.

World Relief, an evangelical Christian humanitarian organization, warns the order means “many refugees who have been lawfully admitted to the U.S. will be unable to be resettled in the same communities as family members already in the U.S. . . . This policy undermines families and is counter-effective toward the goal of promoting economic self-sufficiency.”

World Relief criticized the Trump administration for announcing a historically low annual refugee admission ceiling of 18,000 for FY 2020, a reduction of 84% from the 110,000-limit set during the last year of the Obama administration. “The administration betrays our national commitment to offering refuge and religious freedom to persecuted Christians and other religious minorities and it abandons individuals whose lives are at risk because of their service to the U.S. military,” according to the organization.

Donald Trump pledged in a January 2017 interview with the Christian Broadcasting Network that he would make admitting persecuted Christians from the Middle East a priority. However, the Evangelical Immigration Table reported that in the first half of 2018, the Trump administration admitted only 23 Middle Eastern Christian refugees.

Claiming asylum at the border would not help those persecuted for their religious beliefs. “U.S. Citizenship and Immigration Services acting Director Ken Cuccinelli says the Trump administration will turn away persecuted Christians who seek to bypass a new cap on refugees by claiming asylum at the border. ‘We'll turn them back,’ Cuccinelli told reporters on the White House driveway,” reported the Washington Examiner.

The new White House executive order provides additional tools to discourage those who face persecution from coming to America.