Texas and the Syrian Refugees

The Supreme Court will soon decide whether to take up United States v. Texas, a suit by 26 states challenging the deferred action program introduced by President Obama in November 2014. But it’s worth flagging a different suit by Texas against the federal government, filed late Wednesday, that seeks an injunction barring the resettlement of Syrian refugees into Texas — on the ground that such resettlement would violate 8 U.S.C. § 1522, a provision that appears to require the federal government to engage in at least some consultation with states on refugee resettlement matters. This morning, the government filed its brief in response, which, whatever one thinks of the underlying policy choices, seems pretty darn convincing. In a nutshell, it argues that:

  1. The government has regularly consulted with Texas on refugee resettlement matters, and the statute does not (and has never been understood to) require case-by-case consultation about resettlement of specific refugees (so there’s no claim on the merits);
  2. In any event, section 1522 doesn’t create judicially enforceable rights (so there’s no cause of action);
  3. Texas can’t show any irreparable harm (“Since fiscal year 2011, 243 Syrian refugees have resettled in Texas. Yet Plaintiff does not explain how these specific refugees—mostly children, their parents, and in one case their grandparents—pose a danger to anyone anywhere, let alone to the State of Texas.”); and
  4. “[T]he relief sought is in tension with the national interest of the United States as determined by the President.”

There are lots of reasons, as 20 leading national security experts explained in letters to Congress earlier this week (and as Paul Rosenzweig explained in a thorough Lawfare post) to be deeply skeptical of any suggestion that the Syrian refugees pose any greater threat to our national security than any other non-citizen immigrating to the United States. There are even more reasons, as Ben Wittes has explained, to be put off by the fear-mongering rhetoric behind these suggestions. But politics aside, there’s law — law that makes it abundantly clear that Texas doesn’t have a legal leg on which to stand. One can only hope that the district court agrees, or else there might be two Texas immigration cases at the Supreme Court by the middle of next year. 

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About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).