Court: Trump’s Illegal Consent Procedure for Refugee Resettlement

As discussed in a prior post, on September 28, 2019, President Trump issued an executive order requiring written consents by states and local governments for the federal government’s resettlement of refugees, and other posts have discussed the issuance to date of such consents by at least 40 states.[1]

On January 15, however, the U.S. District Court for the District of Maryland preliminarily ruled that this executive order was invalid and ordered that its enforcement be temporarily halted.[2]

The Court’s Opinion

The court’s opinion on this issue occurred in a civil lawsuit for preliminary and final injunctive relief against this executive order that was brought by three nonprofit refugee resettlement agencies—HIJAS, Inc., Church World Service, Inc. and Lutheran Immigration and Refugee Service [3]—and in the court’s justification for its granting their motion for a preliminary injunction barring enforcement of this executive order while the case proceeds to final judgment.

The court concluded that the well-established principles for preliminary injunction had been established: (1) “the plaintiffs are likely to succeed on the merits;” (2) “they will suffer irreparable harm that is neither remote nor speculative, but actual and imminent if the injunction is not granted;” (3) “the balance of equities favor their position;” and (4) “the relief they seek is in the public interest.” (Memorandum Opinion at 16.) The key issues for the current legitimate public attention to this case are the court’s opinion on the merits and the public interest.

After a careful analysis, the court concluded that the executive order’s “grant of veto power [to state and local governments] over the resettlement of refugees within their borders ”is arbitrary and capricious . . . as well as inherently susceptible to hidden bias” and is “unlawful” based upon “statutory text and structure, purpose, legislative purpose, judicial holdings, executive practice, the existence of a serious constitutional concern over federal preemption, and numerous arbitrary and capricious administrative deficiencies.” (Memorandum Opinion at 17-27.)

The court also concluded that a preliminary injunction against the President’s executive order was in the public interest by “keeping ‘the President from slipping the boundaries of statutory policy and acting based on irrelevant policy preferences,’. . . having governmental agencies abide by federal laws that govern their existence and operations, . . . [and preventing] States and Local Governments [from having] the power to veto where refugees may be resettled –in the face of clear statutory text and structure, purpose, Congressional intent, executive practice, judicial holdings, and Constitutional doctrine to the contrary.” (Memorandum Opinion at 30-31.)

Conclusion

The Federal Government has a right to appeal this decision to the U.S. Court of Appeals for the Fourth Circuit, but has not expressed any intent to do so. In the meantime, officials in the U.S. State Department, state and local governments, the resettlement agencies and refugees themselves are confused about what to do next.

This case arbitrarily was assigned by the District Court’s Clerk to Senior District Judge Peter J. Messitte, who on August 6, 1993, was nominated by President Bill Clinton and on October 18, 1993, confirmed by the U.S. Senate; on September 1, 2008, he assumed senior status. Judge Messitte is a graduate the University of Chicago Law School, where he was a classmate of this blogger. His undergraduate degree is from Amherst College.[4]

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[1] See Latest U.S. Struggle Over Refugees, dwkcommentaries.com (Dec. 11, 2019);   posts to dwkcommentaries.com. relating to refugee resettlement.

[2] Memorandum Opinion, HIJAS, Inc. v. Trump, Civil No. PJM 19-3346 (D. Md. Jan. 15, 2020); Order, Hias, Inc. v. Trump, Civil No. PJM 19-3346 (D. Md. Jan. 15, 2020); Marimow & Sacchetti, Federal judge temporarily halts Trump administration policy allowing local governments to block refugees, Wash. Post (Jan. 15, 2020); Assoc. Press, Judge Halts Trump’s Order Allowing States to Block Refugees, N.Y. Times (Jan. 15, 2020).

[3] The three plaintiff resettlement agencies are members of nine designated “’Resettlement Agencies’ that enter into annual agreements with the Federal Government to provide services to these refugees under the current [U.S.] resettlement program.” (Memorandum Opinion at 1.) The plaintiffs were supported by amici briefs from 12 states, including Minnesota; from the U.S. Conference of Mayors along with 11 mayors and cities, including Minneapolis; and various faith-based organizations with hundreds of affiliates throughout the U.S.  (Id. at 2 (n.2).)

The amici brief for the states asserted the following arguments: (I) The Executive Order Violates the Refugee Act and Interferes with the States’ Sovereign Interests;” (II) “The Refugee Resettlement Consent Process Harms the States’ Refugee Communities;” (III) “The Refugee Resettlement Consent Process Burdens the Staters’ Resources;” (A) Amici States Have Created Highly Effective Refugee Resettlement Systems;” (B) “The Executive Order’s Consent Process Burdens State Refugee Resettlement Programs.” (Brief of the States of California, et al. As Amici Curiae in Support of Plaintiffs’ Motion for Preliminary Injunction, Hias, Inc. v. Trump, Civil No. PJM 19-3346 (D. Md. Dec. 13, 2019).)

[4] Peter Jo Messitte, Wikipedia; U.S. Dist. Ct., Dist, Md, Peter J. Messitte.