Thursday, September 15, 2016

Rough Day for Mike Pence at the Seventh Circuit

The Seventh Circuit had little patience at oral arguments yesterday for Governor Mike Pence's position defending his anti-Syrian-refugee policy in Indiana. Pence sought to appeal a lower court's preliminary injunction halting his policy, but the Seventh Circuit panel was all but outright hostile to Pence's arguments. The panel's pointed questions--and the Governor's utter lack of coherent responses--only revealed that Pence's policy (and his defense of it in this case) is just raw politics.

The arguments came just days after the White House announced that it would increase the total number of all refugees admitted next year.

The case came to the court after a lower court granted a preliminary injunction against Governor Pence's order that state agencies stop using federal Refugee Act funds to resettle Syrian refugees in Indiana "pending assurances from the federal government that proper security measures have been achieved." Under the policy, "[u]nless and until the state of Indiana receives assurances that proper security measures are in place, this policy will remain in full force and effect."

One of the groups that receives federal Refugee Act funds (through the state) to help resettle Syrians brought suit, arguing that Pence's order was preempted by the federal Refugee Act and that it violated Equal Protection and Title VI. The lower court granted a preliminary injunction, finding a likelihood of success on the merits of the discrimination claims and (without specifically holding) a likelihood of success on the preemption claim.

The Seventh Circuit panel focused on preemption and, in particular, Governor Pence's (lack of) authority to take federal resettlement funds designated for resettlement of refugees, including Syrians, but to refuse to use them to resettle Syrians. According to the panel, nothing in the Refugee Act authorizes a state governor to pick and choose among refugees in this way (although a state could decline to take Refugee Act funds altogether), and nothing delegates the power to a state governor to second-guess the State Department and the President himself on judgments about the which refugees present security concerns.

The Governor pointed to congressional testimony by the FBI that, according to the Governor, said that the government couldn't guarantee that Syrian refugees wouldn't pose a security risk.

But Judge Easterbrook pointed out that it's not the FBI's call--and it's certainly not a state governor's call. Under the Refugee Act, the State Department makes that call. And nothing gives a state governor the authority to discard the judgment of the State Department and the President himself as to the security risk of any particular group of refugees.

https://lawprofessors.typepad.com/conlaw/2016/09/rough-day-for-mike-pence-at-the-seventh-circuit.html

Cases and Case Materials, Executive Authority, Federalism, News, Opinion Analysis, Preemption | Permalink

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