9 million Syrians have fled their country since the beginning of the Syrian Civil War. This is a number greater than the entire population of New York City. Since March of 2011, the Syrian Civil War has forced native Syrians to flee everything they know in search of safety. Generally, these refugees go to countries that are not too much more stable than Syria, such as Lebanon, Jordan, Turkey, Iraq or Egypt.
This past summer, the refugee crisis topped headlines in both European and American media. President Obama publicly stated that he would be accepting 10,000 Syrian refugees, a leap from the 1,500-limit goal stated earlier in the year, but still far short of the 800 thousand Germany offered to accept.[1] The plan generally received widespread, bipartisan support.
After the horrific terrorist attacks in Paris, Beirut and Iraq on November 12th and 13th, support for refugees coming into the United States has dropped dramatically. As of now, 31 governors have specifically requested that the federal government not allow any more Syrian refugees into the country.[2] Some governors have even gone as far as asking for only Christian refugees to be allowed to enter our borders.[3] They expressed fear that these refugees may be sympathetic to or directly working with ISIS or other terrorist groups. While these governors have every right to call on the federal government to stop the inflow of refugees, they are legally obligated to allow refugees into their states.
This is not a new interpretation of federalism. In 1893, the Supreme Court ruled on Fong Yue Ting v. United States. The case focused primarily on Chinese laborers and its result is just as impactful now as it was then. “In Chy Lung v. Freeman, a statute of the State of California restricting the immigration of Chinese persons was held to be unconstitutional and void because it contravened the grant in the Congress of the power to regulate commerce with foreign nations.”[4] Fong Yue Ting made it clear that immigration is not an issue that can be controlled by states.
The federal government, not state governments, regulates immigration. The issue was brought up and discussed once again in the 1941 Supreme Court case Hines v. Davidowitz. The case reaffirmed the federal government’s authority on immigration, naturalization and the deportation of immigrants, which includes refugees.[5] If state governments controlled refugees and immigrants, there would be blatant biases in each state, creating more inequalities for refugees, not just Syrian ones. Hines v. Davidowitz made it clear that states do not have the right to regulate immigration law in our country. Imagine if Arizona’s governor suddenly decided not to accept immigrants from Mexico over fears of drug-related violence. That would be obviously unconstitutional. Just as a state cannot declare war or make treaties with another sovereign nation by itself, a state cannot decide which peoples from foreign countries come into its borders.
The decision in Hines v. Davidowitz was reinforced in the 2012 decision in Arizona v. United States. The Supreme Court determined once again that the federal government had full authority and responsibility when it comes to immigration within the United States. Justice Kennedy even went as far to say it would be “inappropriate” to send an immigrant back to their homeland if it was “mired in civil war.”[6] It is an accepted fact that was confirmed both in 1941 and 2012 that the power over immigrants is not granted to the states, but the federal government.
One hundred years before the 2012 case, Arizona was involved in another fight regarding immigration in Truax and the Attorney General General of the State of Arizona v. Raich. Although the case was focused mainly on employment, the Court’s opinion sheds light on what might happen if states could control immigration:
“The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work… And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the States as chose to offer hospitality."[7]
The Refugee Act of 1980 is a statute that also explicitly gives the federal government, specifically the President, the direct power to make decisions on the admission and allocation of funds for refugees. Refugees are defined as people who cannot return to their home nation or country because of “persecution or well-founded fear or persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[8] Syrian refugees perfectly fit the statutory definition. Each refugee is on the run because they fear death from ISIS, their repressive government or a stray bomb from one of the many powers involved. The act gives the President the power to decide on the number of refugees to admit in any particular year.
The Federal government clearly has authority over this issue. State governors and their governments may complain all they want, but in the end it is not up to them who is and who is not admitted into the United States or each respective state.
Much has been said about the Emma Lazarus poem inscribed on the Statue of Liberty and how it relates to the issue of admitting refugees, but it bears repeating. Not far from Ground Zero of the September 11th attacks, the iconic statue features the words, “Give me your tired, your poor, your huddled masses yearning to breathe free.” This is one of the first symbols of America that many refugees and immigrants see coming into our country. Governors refusing refugees are not only failing to uphold the Constitution’s basic rules of federalism, they are violating fundamental American principles. If we do not allow those seeking refuge from the Islamic State into our nation because we are afraid of the Islamic State, then ISIS achieves their main objective of corrupting bedrock American values with terror.
[1] Gardiner Harris, David E. Sanger, and David M. Herszehhorn. “Obama Increases Number of Syrian Refugees for U.S. Resettlement to 10,000”. September 10, 2015. http://www.nytimes.com (accessed November 18, 2015).
[2] Fantz, Ashely and Ben Brumfield. “More than half the nation’s governors say Syrian refugees not welcome”. CNN, November 19, 2015. http://www.cnn.com (accessed November 19th, 2015)
[3] Zezima, Katie. “Cruz: ‘No meaningful risk’ of Christians committing terrorism”. The Washington Post, November 15, 2015. http://www.washingtonpost.com (accessed November 18, 2015).
[4] Fong Yue Ting v. United States, 149 U.S. 698 (1893).
[5] Hines, Secretary Of Labor and Industry Of Pennsylvania V. Davidowitz, 312 U.S. 52 (1941).
[6] Arizona v. United States, 567 U.S. (2012).
[7] Truax and the Attorney General of the State of Arizona v. Raich, 239 U.S. 33 (1915).
[8] Refugee Act of 1980 (PL 96-212, Mar. 17, 1980).