Can states choose whether to accept Syrian refugees?

Editor’s note: University of Illinois labor and employment relations professor Michael LeRoy teaches a course on immigration law and has written a casebook titled “Immigration, Employment and Public Policy.” In an interview with U of I News Bureau business and law editor Phil Ciciora, LeRoy discusses the legality of some state governors refusing to accept Syrian refugees.

Can governors unilaterally declare that they won’t accept more refugees?

Public policies for refugees are set by federal legislation, the Immigration and Nationality Act, under specific provisions for political asylum. The president proposes to Congress a quota, called a refugee ceiling. Most years, Congress accepts the number, probably because it’s so low. It was 70,000 in 2015. Where do governors fit in this process? They don’t, at all. But this is about politics, not the law.

Deciding the fate of refugees – is this a new role for governors?

Actually, no. Former Gov. Jan Brewer of Arizona was instrumental in helping to pass several anti-immigrant laws that tested the boundary between state and federal law. Parts of Arizona’s law have withstood Supreme Court scrutiny – for example, a controversial provision that de-authorizes any corporation from doing business if it knowingly violates a state requirement to verify the immigration status of workers.

How successful are state efforts to make immigration laws?

In my judgment, too successful. The U.S. Supreme Court has upheld certain parts of Arizona’s S.B. 1070, which requires police to determine the immigration status of someone arrested or detained when there is “reasonable suspicion” they are not in the U.S. legally. Nearly two dozen states passed copycat versions of S.B. 1070 – a number that approximately matches the number of anti-Syrian proclamations from Republican governors.

What can governors do to enforce their proclamations?

They would need, first, to have their legislatures pass some type of enabling legislation, maybe patterned after the “deterrence” model of S.B. 1070 in Arizona. Another approach is to criminalize the act of renting housing to the targeted immigrant group. This aggressive approach was taken up by Hazleton, Pennsylvania, in the mid-2000s. But after 10 years of litigation, including at least one trip to the U.S. Supreme Court, Hazleton’s anti-immigrant ordinances were struck down by federal courts.

What’s the next move at the state and federal levels?

The president has significant power to regulate policies under the Immigration and Nationality Act, so one might anticipate a countermove by President Obama. On the other hand, a federal appeals court in the 5th Circuit recently struck down his plan to provide 4 million undocumented immigrants with deportation relief and work permits. In this case, 26 states successfully litigated against the president’s more lenient approach to immigration. Resolution of this case – assuming it goes to the Supreme Court – will affect the latest effort by Republican governors to erect a wall of fear around America.

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