For Those Who Think State Governors Get to Decide If Their State Admits Refugees, And Why Congress Can’t Constitutionally Pick Said Refugees’ Race or Religion, by Jordan Walsh

In the wake of the horrific attacks in Paris, Governors of over half of these United States have penned letters asking President Obama to reconsider his plan to resettle refugees of Syrian origin in their states. I say ‘ask’ because ask is all these state Governors have the Constitutional power to do under our federalist system. To be sure, they do not have to expend peculiar state resources in order to assist in refugees’ resettlement, but despite any posturing to the contrary, they cannot prevent it from happening. Nor can the states themselves openly discriminate based on race or religion in their distribution of or denial of state resources. As to foreign policy, the nation necessarily “speaks with one voice” and it is the voice of the Executive branch, led by the President. As to regulatory policy, where the federal government has chosen to occupy a field in which it has supremacy—such as it has with immigration and legislation dealing with refugee crises—the states are pre-empted from regulating in a manner contradictory to federal policy. All of this is settled law, and any politician or media outlet claiming to the contrary (or permitting such claims to go unchallenged) is doing a disservice to the American people, and to our foreign policy.

The standing of the United States on the international stage would be severely diminished and our national security weakened if foreign leaders and nations could not rely on the President and Executive Branch officials’ articulation of our foreign policy as both true and reliable. This is not a new, nor an unsettled concept, and was indeed a consideration in the strengthening of our federal government’s supremacy in matters of foreign affairs between the failed Articles of Confederation and the drafting of our Constitution. So-called states rights’ champion and third President Thomas Jefferson is even quoted as advising that the “states must see the rod” of federal power in the drafting of a new Constitution in order for the grand experiment of the United States to succeed. To suddenly allow the several states to set their own immigration policies would be inapposite to such consistency. It would damage our reputation and weaken our influence globally. And most, if not all, of these Governors know this; yet, they are bloviating for the cameras, and pandering to the lowest common denominator, instead of focusing on and discussing actual measures that could successfully and carefully balance the need for safety with the need for humanitarian aid.

It is hard to be surprised, however, at the behavior of these state Governors, when there are multiple Senators and 2016 Presidential candidates advancing equally prejudicial and unconstitutional plans at the federal level. Sens. Rand Paul, Ted Cruz, and former Gov. Jeb Bush have all floated some sort of federal legislation automatically denying certain refugees access based on their national origin, race or religion. I’ll say that again. Three Republican candidates for President—two of whom currently serve in our nation’s highest legislative body–want to openly and officially classify people by their race, national origin, and their religion when it comes to barring entry to the United States. There could not be a more un-American position. It should offend each of us to even hear such statements uttered.

The United States of America has throughout her history been the nation most welcoming to refugees fleeing war and oppression. We have taken in, welcomed, and assimilated into our culture more refugees and immigrants than any other nation since the dawn of our existence, and it is the reason we are, to date, the most successful pluralist nation in the history of the world. Some of my own (Catholic) ancestors came here fleeing British (Protestant) oppression in Ireland, as only one of a myriad of examples. The idea that we would have barred all access to a starving five-year-old child during the nineteenth-century potato famine, based solely on his or her Catholic-ness (or Irish-ness) is anathema to everything this immigrant nation stands for, and more, in direct opposition to one of the most basic tenets upon which it was founded.

The United States of America does not formally discriminate against people based solely on their religion. Freedom of religious belief is guaranteed not only by the First Amendment (as is the separation of church and state, a.k.a. our freedom from state religion), but is contemplated within the text of the Constitution as originally drafted as well, and it encompasses the right to be presumed competent to take part in and get the benefit of the public trust of one’s fellow Americans without regard to one’s faith. I use the term “public trust” because that is a term the Constitution uses. Article VI, paragraph 3, known as the religious test clause, declares, “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Public trust is an old term, dating to the origins of the concept of democracy, and encompasses the idea that because the true power lies with the people, there is an inherent trust and assumption of competency placed in those whom are elected, which they may not violate while representing the public. Breaches of this inherent trust are generally deemed impeachable offenses. That our Founders saw fit to include freedom of belief as a factor, which could never be presumed to negate the ability of the public to trust in a person’s ability to represent them, is determinative as to this issue. If it would be unconstitutional to institute a religious test for those in whom the public places their trust as elected officials, how could it be constitutional to have a religious test to determine who may even seek to become part of the larger public being represented itself? Such logic simply does not follow.

Any bill banning refugees from seeking settlement in the United States based on an immutable characteristic such as race or religion would be unconstitutional as enacted in 2015. The lessons learned during and successive to World War II must be heeded, particularly as we are facing the largest refugee crisis since then. More, such reactionary and short-sighted policy choices would stand in complete opposition to the very stringent, personalized, screening procedures that refugees seeking placement in the United States do currently undergo, and would do nothing to help fund or maintain productive security procedures and protocols that protect us from the threat of domestic terrorism, which most law enforcement professionals agree is just as big a current threat to our safety as foreign. Banning the very people trying to escape such terror from entering this nation solely based on their proximity to their oppressors is the height of irrationality, not to mention cruelty. Bills and policies such as these being introduced by Sens. Cruz and Paul, and Gov, Bush, will not make us safer; they will merely make us less human, not to mention, less American.

Picture Credit: Great Irish Famine Memorial at Penn’s Landing (Philadelphia), by Alexmar983 (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

 

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