ANALYSIS/OPINION:

When the Obama administration raised the refugee admission quota for fiscal 2017 to 110,000, New Jersey, Maine, Kansas and Texas formally withdrew from the resettlement program.

Actually, this is a program states can never leave. A Clinton-era regulation prevents states from meaningfully withdrawing from the federal refugee resettlement program. If history is any guide, those states that left the program are getting more refugees now than they would have had they stayed in the program.

The only reason it is not evident is because the national quota for 2018 was lowered by the Trump administration to 45,000; the fiscal year will likely end with a number even smaller than that.

By law the president can zero out the quota altogether and a new president could increase it to 200,000 or higher. Before that happens, it may be wise to look at reforming the program.

At least one reform would fit in with the president’s goal of putting the federal government back into its proper constitutional role vis a vis the states.

The Refugee Act intended to insulate states from program costs. The bill’s Senate sponsor, Edward Kennedy, noted the program would “assure full and adequate federal support for refugee resettlement programs by authorizing permanent funding for state, local and volunteer agency projects.”

Unlike other legal immigrants, refugees are eligible for all federal welfare programs on the same basis as citizens upon arrival. (This is a lifetime entitlement for refugees who become citizens.)

The Refugee Act authorized federal reimbursement to the states for three years of the state’s portion of Medicaid, TANF, SSI, etc. paid on behalf of each refugee resettled in the state. The ongoing cost for support of refugees on public assistance is the biggest portion of the overall cost of the program. This support for state outlays was gradually scaled back and by 1991 was completely gone.

For those refugees who do not qualify for federal welfare/Medicaid, three years of support was promised from HHS in the form of Refugee Cash Assistance and Refugee Medical Assistance.

By 1991 this support was reduced to eight months — the time frame used as the basis for the absurd claim made by the resettlement industry that most refugees are self-sufficient after eight months in the country. It helps that the industry uses HHS’s novel definition of “self-sufficiency” when measuring program success. A refugee can be in public housing, receiving Medicaid, food stamps, cash from SSI, etc. and still be considered “self-sufficient” by the government. Only TANF or Refugee Cash Assistance causes a refugee to lose the “self-sufficient” designation.

Substantial costs have been purposely shifted to state taxpayers over the years.

The Senate report from the 1992 Reauthorization of the Refugee Resettlement Act acknowledged that the decision to stop reimbursing states for the state cost of Medicaid and cash welfare was causing pain at the state level:

“[S]ome smaller states indicate that they may eliminate their refugee programs entirely with such a cut [reimbursement to states]. The prospect of these cuts has jeopardized the current refugee program.”

Likely in response to rumblings from state governments about exiting the program, the Clinton administration promulgated regulation 45 CFR 400.301 in 1994 allowing resettlement contractors to continue operations in a state regardless of state objections. This arrangement allowed private contractors to operate independently with no input from state government. Regulatory fiat guaranteed that a state could never get out of the program or escape its fiscal impact on state revenues.

Prior to 45 CFR 400.301 the states were participating in and paying for a voluntary program from which they had every right to withdraw at any time with the expectation that no refugees would be resettled in the state.

Of several state lawsuits against the feds attempting to reduce or stop resettlement in a particular state, only the State of Tennessee’s March 2017 suit (State of Tennessee v. United States Department of State, et al.) is based on states’ rights as defined by the U.S. Constitution — arguing that the refugee resettlement program is an imposition by Washington on state resources against the state’s will. It is the only state lawsuit still pending regarding refugee resettlement.

Repeal of 45 CFR 400.301 would have the immediate effect of allowing states to withdraw from the U.S. refugee resettlement program.

Regulations can be repealed and they can be reissued. A judicial decision on the Tennessee lawsuit’s principle question on just how far the federal government can impose on a state’s control over its own resources is still needed and extends beyond the refugee resettlement program.

• Don Barnett is a fellow at the Center for Immigration Studies.

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