The problem for Jindal, Abbott and the other governors opposed to admitting refugees, however, is that there is no lawful means that permits a state government to dictate immigration policy to the president in this way. As the Supreme Court explained in Hines v. Davidowitz, “the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution.” States do not get to overrule the federal government on matters such as this one.
Just in case there is any doubt, President Obama has explicit statutory authorization to accept foreign refugees into the United States. Under the Refugee Act of 1980, the president may admit refugees who face “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” into the United States, and the president’s power to do so is particularly robust if they determine that an “unforeseen emergency refugee situation” such as the Syrian refugee crisis exists.
This power to admit refugees fits within the scheme of “broad discretion exercised by immigration officials” that the Supreme Court recognized in its most recent major immigration case, Arizona v. United States. Indeed, in describing the executive branch’s broad authority to make discretionary calls regarding immigration matters, Arizona seemed to explicitly contemplate the circumstances that face President Obama today. The United States may wish to allow a foreign national to remain within its borders, the Court explained, because the individual’s home nation “may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return.”
Moreover, the Court explained, America could suffer severe foreign policy consequences if the executive does not enjoy broad discretion over immigration matters. “The dynamic nature of relations with other countries,” Justice Anthony Kennedy explained in his opinion for the Court in Arizona, “requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.”
Hines offered a similar warning about the close tie between immigration and foreign relations, explaining that immigration policy must be set by the national government and not by 50 different state governors because the entire United States can suffer when a foreign nation reacts adversely to our treatment of immigrants. “Experience has shown that international controversies of the gravest moment, sometimes even leading to war,” Justice Hugo Black wrote in his 1941 opinion for the Court, “may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government.” Thus, the Court concluded, “the regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on the same subject, ‘the act of congress, or the treaty, is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it.'”
To be clear, states still retain the power to deny their own resources to the federal government, so they could potentially make settlement of refugees more difficult than it would be if the states cooperated. Nevertheless, an act of Congress — the Refugee Act of 1980 — has given Obama broad discretion to allow refugees to be admitted into the United States. The states of Texas, Louisiana and others must yield to that act.
[Cross-posted from thinkprogress]