With more than two dozen governors objecting to a federal government plan to accept Syrian refugees, a spotlight has been placed on how the Constitution deals with these matters.
In the long run, Congress might have a bigger say in a federal policy decision that could see as many as 10,000 Syrian refugees accepted into the United States in the coming year. State leaders, such as governors, and state legislatures have far fewer options.
In general terms, the Constitutional power for the federal government, and not the states, to control immigration policies and laws comes from interpretations of Article 1, Section 8, Clauses 3 and 4, of the Constitution. A Supreme Court decision from 1941, Hines v. Davidowitz, explained the logic behind this, which involves conflicts between federal and state jurisdiction.
In 1939, Pennsylvania established its own alien registration act, which required non-citizens to pay a fee to register within the state, show a state ID card to police at all times, and present the same card to qualify to register to drive a car. At the same time, a federal alien registration act existed.
Justice Hugo Black, writing for the majority, struck down the Pennsylvania law. “That the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution was pointed out by authors of The Federalist in 1787,9 and has since been given continuous recognition by this Court,” Black said. “The power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation, but that whatever power a state may have is subordinate to supreme national law.”
“Our primary function is to determine whether, under the circumstances of this particular case, Pennsylvania's law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” said Black.
In the minority opinion, Justice Harlan Fiske Stone disagreed, saying the federal and state laws differed, even though they had the same general subject. “The national government has exclusive control over the admission of aliens into the United States, but after entry, an alien resident within a state, like a citizen, is subject to the police powers of the state and, in the exercise of that power, state legislatures may pass laws applicable exclusively to aliens so long as the distinction taken between aliens and citizens is not shown to be without rational basis,” he argued.
In 1980, Congress passed and the President signed the Refugee Act, which added details to earlier immigration acts that outlined a protocol for accepting refugees. The Act said the Department of Health and Human Services “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.”
In theory, the states could refuse to participate in these efforts to place refugees in their communities, and pose other barriers, such as blocking refugees from getting drivers’ licenses or access to some state services. But multiple legal experts who have commented publicly on the question see these efforts as limited and problematic.
"The one thing I feel very comfortable saying is there is absolutely no constitutional power for a state to exclude anyone from its territories," Stephen Legomsky, a Washington University of St. Louis law professor, told USA Today on Monday.
Another problem for the states is that much of the relocation funding they control originates with the federal government.
Florida Governor Rick Scott is opposed to having Syrian refugees in Florida under the current system. But he has acknowledged that state leaders are limited in how they can handle Syrian refugees, and that it would be up to Congress to act in some fashion.
“Please take any action available through the powers of the United States Congress to prevent federal allocations toward the relocation of Syrian refugees without extensive examination into how this would affect our homeland security,” Scott said in a public letter to House Speaker Paul Ryan.
Speaker Ryan and Republican congressional leaders could attempt to tie funding for these refugee aid programs to an upcoming appropriations bill that needs to be passed by December 11, to avoid a government shutdown.
But on Tuesday, Ryan and GOP leaders said they wanted to fast track a bill to stop Syrian refugee efforts for now and come up with a new plan to figure out if some refugees pose security threats.
