Attorneys defending Indiana Gov. Mike Pence’s order to bar agencies from helping Syrian refugees resettle in his state faced unusually fierce questioning before a federal appeals court Wednesday, suggesting the panel might side with a lower court that found the order discriminatory.

A three-judge panel for the 7th U.S. Circuit Court of Appeals in Chicago zeroed in on the intelligence and intent behind the Republican vice presidential candidate’s order, which a federal judge said in February “clearly discriminates” against refugees from the war-torn nation. Judges suggested that Indiana could’ve had a stronger argument for opting out of the refugee program — in which states disperse federal money to resettlement organizations — instead of excluding Syrians.

“If you’re in, you play by the government’s rules,” Judge Frank Easterbrook said.

The oral arguments came the same day the White House announced that the refugee program will be expanded in the next year as concern continues about the refugee crisis stemming from Syria’s civil war and conflicts in Iraq and Afghanistan.


After November’s terrorist attacks in Paris, Pence was among dozens of governors from mostly Republican states who attempted to block Syrian refugees, saying there were questions about the federal government’s screening process. The suspects in the attack were mainly from France and Belgium; GOP leaders, including Pence, noted that a Syrian passport, now believed to be fake, was found near one of the suicide bombers.

Pence sought to withhold federal funds for groups, including Indianapolis-based Exodus Refugee Immigration, that help Syrian refugees with medical and social services and job training.

The governor had the authority “due to terrorism concerns,” Indiana’s attorney general said in a statement Wednesday. But the American Civil Liberties Union of Indiana, which is representing Exodus, said in previously filed legal briefs that the order violates the U.S. Constitution and the Civil Rights Act and discriminates because states in the federal program must assist without regard to nationality. The ACLU said arguments by Indiana state officials were “built on fear.”

× Donald Trump announced Indiana Gov. Mike Pence as his vice presidential running mate.


Courts have knocked down other states’ efforts to block Syrian refugees, most recently in June, when a federal judge threw out Texas’ lawsuit because it had no authority over resettlements handled by the federal government.

Indiana Solicitor Gen. Thomas Fisher repeatedly cited in court FBI directors’ past comments about less information being available on Syrian refugees compared with those from other countries.

The judges, in sharp exchanges at times, were skeptical.

When Fisher interrupted a judge, another on the bench issued a rebuke. Later, when Judge Richard Posner launched into queries about how Indiana had determined Syrians were more dangerous than other refugees, he appeared unsatisfied with Fisher’s response.


“Honestly, you are so out of it,” Posner said.

Questions directed at ACLU attorney Kenneth Falk were less intense and largely focused on constitutional arguments.

It’s unknown when the three-judge panel will issue a written ruling on whether to uphold or overturn the lower court’s decision.

Since February, more than 100 refugees from Syria have resettled in Indiana, according to Exodus. And the Obama administration said Wednesday that the U.S. will strive to take in 30% more refugees — 110,000 — than allowed in the previous year, saying the program doesn’t pose a national security threat.


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