A federal appeals court on Monday told the state of Indiana it could not withhold federal funds it administers from Syrian refugees resettled in the state.
In FY 2016, 169 Syrian refugees and 64 Somali refugees were resettled in Indiana, according to the Department of State’s interactive website. A total of 1,893 refugees were resettled in the state during the most recent fiscal year that ended on September 30.
A local resettlement agency, Exodus Refugee, sued Indiana to obtain funding for the Syrian refugees sent to it by the federal government and resettled in the state without the consent of the state government. Exodus Refugee is the local affiliate of two of the largest voluntary agencies (VOLAGs) currently operating in the lucrative resettlement industry which receives more than $1 billion in federal funding each year — Church World Service and Episcopal Migration Ministries.
The news came just one day before Indiana Gov. Mike Pence, Republican nominee Donald Trump’s running mate, and Sen. Tim Kaine (D-VA), Democratic nominee Hillary Clinton’s running mate, square off in Tuesday’s first and only vice-presidential debate.
The issue of Syrian refugee resettlement could be a significant topic in tonight’s debate, which will be moderated by Elaine Quijano of CBS News.
Recent polls indicate that a vast majority of voters oppose increasing the number of Syrian refugees resettled in the United States. The topic, however, was not raised in the first presidential debate between Trump and Clinton. Should Quijano raise the issue, citing the recent court decision, or should either Pence or Kaine address it, it could prove to be one of several potential flash points in the debate.
“The [Seventh Circuit District Court] upheld a lower court judge in barring Pence from interfering with the distribution of federal funds to resettle Syrian refugees in his state. The appeals court panel said that federal law bars discrimination based on nationality,” NPR reported:
In a unanimous opinion, the appeals court said Gov. Pence acted illegally in accepting federal money for refugee resettlement and then refusing to use that money to aid Syrian refugees.
The panel rejected Pence’s argument that terrorists are posing as Syrian refugees to gain entry into the U.S., calling it a “nightmare speculation” based on no evidence. Indeed, the court said, the state presented no evidence that any Syrian refugee had been involved in a terrorist act in the U.S.
The court added that resettlement of persecuted refugees is a federal responsibility under the 1980 Refugee Act, which authorizes the president to determine, on the basis of “humanitarian concerns or … the national interest,” how many refugees to admit each year. . .
But with Syrian refugees, the state of Indiana refused to use any of the refugee resettlement money it had received from the federal government. Exodus, a private resettlement group that contracted with the state, went to court, represented by the ACLU. It argued that the state’s refusal was illegal discrimination.
“Pence argued that the state’s position was not based on discrimination but on the threat that Syrian refugees pose to the safety of residents of Indiana,” but Judge Richard Posner, “Writing for the court . . . called Pence’s argument ‘the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive, he isn’t discriminating.’ ” NPR reported:
Posner went on to add that “that of course would be racial discrimination, just as [Pence’s] targeting Syrian refugees is discrimination on the basis of nationality.”
Joining the decision were Judges Frank Easterbrook and Diane Sykes. . . Easterbrook and Posner were appointed by President Reagan, and Sykes was appointed by President George W. Bush. . . Sykes is on Trump’s list of potential Supreme Court nominees.
Though appointed by Reagan, Judge Posner’s track record is more aligned with liberals than conservatives of late. He recently wrote that he “sees ‘absolutely no value’ in studying the U.S. Constitution because ‘eighteenth-century guys’ couldn’t have possibly foreseen the culture and technology of today.”
In a recent op-ed for Slate, Judge Posner, a senior lecturer at the University of Chicago Law School, argued that the original Constitution, the Bill of Rights, and the post–Civil War amendments “do not speak to today.”
“I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries — well, just a little more than two centuries, and of course less for many of the amendments),” he wrote. “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”
He added, “let’s not let the dead bury the living.”
Judge Posner, an outspoken opponent of late Justice Antonin Scalia, also blasted “absurd” posthumous encomia for the late conservative.
“I worry that law professors are too respectful of the Supreme Court, in part perhaps because they don’t want to spoil the chances of their students to obtain Supreme Court clerkships,” he wrote. “I think the Supreme Court is at a nadir.
The court apparently did not take into account significant evidence that Syrian refugees in Europe have engaged in terrorist activity there. In June, for instance, Germany arrested three suspected Syrian terrorists.
Nor, apparently, did the court take into account FBI Director James Comey’s recent admission that there is evidence the September 17 attack on ten Americans by a Somali refugee at a Minnesota mall was motivated by “inspiration from radical Islamist groups.”
Under the court’s logic, Indiana could, arguably, sue to end the resettlement of Somali refugees now.
The court also did not address the public health risk posed to the general public in Indiana by refugees from all countries.
As Breitbart News reported previously, four refugees who arrived in Indiana in FY 2015 were diagnosed with active tuberculosis (TB). Twenty-six percent of refugees resettled in Indiana that year tested positive for latent tuberculosis infection.
Indiana is one of thirty-four states that have joined and not yet withdrawn from the federal refugee resettlement program. Texas recently became the thirteenth state to withdraw from the program. In those states, as well as two states that have handed over operation to the federal government but technically remain in the program, the federal government has selected resettlement agencies to operate the program under the statutorily questionable Wilson Fish alternative program.
Tennessee, which has withdrawn from the federal refugee resettlement program, intends to sue the federal government on Tenth Amendment grounds, an argument that would be available to Indiana should it withdraw from the program.
Though the appeals court ruled that a state participating in the federal refugee resettlement program may not withhold federally administered funds from any group resettled within its jurisdiction, even the Washington Post conceded in a recent op-ed that a President Trump would have every legal right to do so.
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