U.S. District Court (D. Md.)

Washington Post Endorses Court Injunction Against Trump’s Consent Requirements for Refugee Resettlement

On January 15, the U.S. District Court for the District of Maryland issued a preliminary injunction banning enforcement of President Trump’s executive order requiring state and local governments to consent to refugee resettlement. Later that same day the President through his Press Secretary released a bombastic criticism of that decision that was rebutted by the court’s opinion, which he obviously had not read. [1]

Now the Washington Post with an editorial joins the chorus of support for the court’s decision.[2]

According to the editorial, “there are excellent reasons” for not requiring such consents.

”First among them is that his executive order— in effect an invitation for Americans to turn away prospective neighbors who might look, sound or think different — reinforces and encourages the most exclusionary, divisive, intolerant faults in America’s social fabric. By doing so, it diminishes the country, not least in the eyes of a world that has long looked to the United States as a leader of humanitarian causes such as resettling the planet’s most desperate people.”

Second, the court’s opinion “offered a lucid explanation of why it is unlikely to pass legal or constitutional muster. [The judge] cited a raft of precedents, including by the Supreme Court, reserving for the federal government — not states, let alone localities — the exclusive power to admit or deny immigrants. He also demonstrated that the president’s stance flies in the face of Congress’s intent when it established the current refugee system, in 1980, and subsequently.”

“That law provides what it calls ‘comprehensive and uniform provisions’ to resettle and provide for refugees admitted after rigorous screening by U.S. agencies, a process that takes about two years. It establishes a system of consultation between federal and local officials designed to ensure a smoothly functioning system. Nowhere does it grant states and localities a veto; in fact, in amending the law to provide for more consultation, in 1986, the House Judiciary Committee noted in a report that it did not intend to grant states and localities any veto.”

“Mindful of the legislation, Justice Department lawyers, tasked with defending the president’s order, tried to pretend it did not amount to a veto for states and localities; rather, they said, it was meant only to ‘enhance the consultation.’ The judge rightly labeled that ‘Orwellian Newspeak.’”

“Mr. Trump’s move was an appeal to the nation’s worst instincts. Most Americans didn’t bite. Ahead of a deadline on Tuesday, at least 42 governors and scores of localities, including many with large Republican majorities, have announced they would accept refugees. Only Texas Gov. Greg Abbott (R) so far has declined; the judge’s decision denies him that power.”

“That won’t stop Mr. Trump from eviscerating the refugee program; he’s already slashed the annual limit on resettlements to 18,000, down from the 110,000 President Barack Obama announced in his last year in office. The open arms of most states and localities do send a convincing message, though — that Americans are not as fearful, hostile and small-minded as Mr. Trump evidently believes.”

Conclusion

Now is the time for other newspapers and citizens to join the chorus of objections to this president’s scurrilous attacks on refugees and to promulgate and honor the moral and religious obligation to welcome, protect, promote and integrate refugees and other immigrants. [3]

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[1] Court: Trump’s Illegal Consent Procedure for Refugee Resettlement, dwkcommentaries.com (Jan. 16, 2020); President Trump’s Unjust Criticism of Court’s Enjoining the Consent Procedure for Refugee Resettlement, dwkcommentaries.com (Jan. 18, 2020).

[2] Editorial, Trump invited states and localities to bar refugees. Judge says he can’t do that, Wash. Post (Jan. 19, 2020).

[3] Pope Francis Reminds Us To Welcome, Protect, Promote and Integrate Refugees and Immigrants, dwkcommentaries.com (Jan. 1, 2020).

President Trump’s Unjust Criticism of Court’s Enjoining the Consent Procedure for Refugee Resettlement

As discussed in a prior post, the U.S. District Court for the District of Maryland on January 15 issued a preliminary injunction halting enforcement of the President’s executive order requiring state and local governments to consent to refugee resettlements.

President Trump’s Criticism of Court’s Decision

Later that same day, President Trump issued a statement criticizing that court’s decision.[1] Here is what it said:

“Another lawless district court has asserted its own preferred immigration policy in place of the laws of the United States – and, in so doing, robbed millions of American citizens of their voice and their say in a vital issue directly affecting their communities. President Trump rightly and justly recognized that your communities are unique, and while some cities have the resources to adequately support refugees and help them be successful, not all communities can sustain the substantial and costly burden. Knowing that, the Trump Administration fulfilled a key promise by giving States and localities a seat at the table in deciding whether or not refugees will be placed in your communities. In addition, under the Refugee Act of 1980, Congress explicitly afforded the President authority over the refugee resettlement process, including by taking local consultation into account. This is a preposterous ruling, one more example of nationwide district court injunctions run amok, and we are expeditiously reviewing all options to protect our communities and preserve the integrity of the refugee resettlement process.”

Court: State and Local Governments’ Involvement in Process

This truculent presidential statement totally ignores the court’s reasoned discussion (with appropriate legal citations) of the U.S. Refugee Admissions Program (RAP), which existed before this executive order. RAP “is jointly administered by a division within the Department of State (DOS) and the Department of Health and Human Services (HHS). . . Once DHS conditionally approves an applicant for resettlement, the prospective refugee receives ‘sponsorship assurance’ from one of the nine Resettlement Agencies that has entered into a cooperative agreement with the State Department to assist in the resettlement of refugees.”[2]

“The Resettlement Agency then assumes responsibility for placing the prospective refugee with one of its [local] affiliates. . . . Heretofore, pursuant to 8 U.S.C. sec. 1552(a) . . ., the Federal resettlement authorities and the Resettlement Agencies have been directed to meet and consult with State and Local governments in order to establish policies and strategies for the placement and resettlement of the refugees, in the course of which, acting in concert, they are directed to take into account several factors, including the availability of employment opportunities, affordable housing, and public and private resources in the destination (e.g. educational, healthcare, and mental health resources).” (Emphasis added by blogger.)[3]

As support for this conclusion, the court quoted the following provisions of the federal statute (8 U.S.C. sec. 1522) setting forth the “’conditions and considerations’ for authorizing for programs for the initial resettlement of and assistance to refugees:”[4]

“‘The Director and the Federal agency administering [the program of initial resettlement] shall consult regularly (not less often than quarterly) with State and Local governments and private nonprofit voluntary agencies concerning the sponsorship process and the intended distribution of refugees among the States and localities before their placement in those States and localities.’” (Emphasis provided by court and re-emphasized by this blogger.)
“’The Director shall develop and implement, in consultation with representatives of voluntary agencies and State and local governments, policies and strategies for the placement and resettlement of refugess within the United States.’” (Emphasis provided by court and re-emphasized by this blogger.)
A “’refugee is not initially placed or resettled in an area highly impacted(as determined . . . after consultation with such agencies and governments.’” (Emphasis provided by court and re-emphasized by this blogger.)
There shall be “’a mechanism whereby representatives of local affiliates of voluntary agencies regularly (not less often than quarterly) meet with representatives of State and local governments to plan and coordinate in advance of their arrival.’” (Emphasis provided by court and re-emphasized by this blogger.)
“’with respect to the location of placement of refugees within a State, the federal agency admistering [the program] shall, consistent with such policies and strategies and to the maximum extent possible, take into account recommendations of the State.’” (Emphasis provided by court and re-empasized by this blogger.)

Conclusion

The court’s opinion rationally with appropriate legal citations demonstrates that RAP in various ways requires collaboration with State and local governments over refugee resettlement. The President’s response through the Press Secretary does not meet this high standard and should be criticized and then ignored.

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[1] White House, Statement by the Press Secretary on the Injunction Prohibiting Responsible Refugee Resettlement (Jan. 15, 2020).

[2] Memorandum Opinion at 7-8, Hias, Inc. v. Trump, Civil No. PJM 19-3346 (D. Md. Jan. 15, 2020). It should be mentioned that three of the nine Resettlement Agencies are the plaintiffs in the case in which the court enjoined the consent procedure. (Id. at 1.)

[3] Id. at 7-10.

[4] Id. at 17-18.

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.