North Dakota Legislators Introduce Anti-Refugee Bill

On Monday, Martin Luther King, Jr. Day, nine Republican members of the North Dakota state legislature introduced H.R. 1427: "A BILL for an Act to provide for the determination of refugee absorptive capacity."

I believe it is, as a whole, preempted by federal law. I'll get to that in a bit. But to help provide some context for the substance, it's worth pointing out that North Dakota is blessed with an unemployment rate of 2.5% – that's compared to the national average of 4.7%. In short, we have so much. That makes it hard to understand why some in this state are reluctant to share a very small percentage of our good fortune with individuals who have been chased away from their homes because of persecution on the basis of race, nationality, religion, politics, or membership in a particular social group.

Here is how the bill defines "absorptive capacity." In part, it is:

The capacity of the social service agencies, child welfare agencies, child care facilities, educational facilities, health care facilities, translation and interpreter services, and law enforcement agencies of the state or in the jurisdiction of the local government to meet the existing needs of the community's current residents considering budgetary and other restraints

Absorptive capacity also includes the capacity to provide medical care, affordable housing, education, job opportunities, and law and order. The bill says that absorptive capacity also embraces:

The capacity of the state and local government to provide services considering whether the jurisdiction of the local government has been highly affected by the presence of refugees or comparable populations, including the proportion of refugees and comparable entrants in the population in the state or in the jurisdiction of the local government, the amount of secondary migration of refugees to the state or to the jurisdiction of the local government, and the proportion of refugees in the state or in the jurisdiction of the local government receiving cash or medical assistance through public assistance.

Other provisions of the bill go on to require regular meetings between local governments and "the state office for refugees and any refugee resettlement organization" to assess absorptive capacity. It requires "memoranda of understanding" regarding refugee placement. And it requires disclosure of data regarding refugees' ages, gender, education, location, criminal history, and use of cash assistance (among other things).

Local governments are given a process by which they could petition for a moratorium on new refugee resettlement. And the governor is empowered to place a moratorium on refugee resettlement by executive order.

I don't believe that these measures are legally permissible. As immprof Stella Birch Elias  explained in The Perils and Possibilities of Refugee Federalism, 66 American U. Law Rev. 353 (2016), state governments do not have the authority to exclude refugees from their territories. But whether it could withstand a legal challenge or not, the very proposal of it has left me heartbroken.

For any North Dakotans reading this post, the legislators backing H.R. 1427 are State Representatives Olson, R.S. Becker, B. Koppelman, K. Koppelman, Owens, and Vetter, along with State Senators Holmberg, J. Lee, and Luick.

I can't help but remark on the timing of this being introduced on MLK Day. In the words of Coretta Scott King, the holiday is intended to commemorate Martin Luther King, Jr.'s words, which "answered our collective longing to become a country that truly lived by its noblest principles." The day also commemorates Dr. King's actions as "America’s greatest champion of racial justice and equality" and his "great dream of a vibrant, multiracial nation united in justice, peace and reconciliation; a nation that has a place at the table for children of every race and room at the inn for every needy child."

I hope the spirit of those words might find their way into the State Capitol when this bill comes up for discussion.

-KitJ