JURIST Guest Columnist Guadalupe T. Luna of Indiana Tech Law School discusses Indiana Governor’s refusal to accept Syrian refugees…

Federal law and its nexus with international humanitarian principles, agreements and commitments extend sanctuary to refugees fleeing war-torn countries, ethnic strife and other harm that precludes return to their countries of origin. Against this framework the governor of Indiana suspended the entry of Syrian refugees into the state. Lacking legal authority over the admission and exclusion of refugees, the governor renders at risk the federal rights of refugees and US international law obligations. Prohibiting Syrian refugee entry into Indiana is ultimately irreconcilable with federal constitutional constraints and with the international human rights instruments, principles and guidelines that protect refugees.

Federal law [PDF] incorporating human rights principles defines refugees as:

any person who is outside any country of such person’s nationality … and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.

Tethered to the above is the fundamental international law principle of non-refoulement. Substantively non-refoulement bars nation-states from expelling or returning (“refouler”) “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

The League of Nations which adopted the 1951 International Convention Relating to the Status of Refugees with subsequent protocols also adopted and agreed to it by its membership of over one hundred nations. The Convention extends humanitarian assistance to those fleeing persecution because of race, religion, nationality and membership in a particular social group or political opinion. The American Declaration on the Rights and Duties of Man encompasses declarations tethered to various nation states protecting refugees. Additional substantive human rights protections and guidelines extend from the Universal Declaration of Human Rights. Supplemental human rights principles and instruments additionally buttress these fundamental rights of protection and agreed to by membership states specific to refugees. The expansion of core human rights instruments encompasses the rights of women, the disabled and children with several conventions additionally constituting a basis of protection. Additionally the International Covenant on Civil and Political Rights are also recognized in various human rights instruments. Article 20 reaches the governor’s suspension when such measures are designed to create “incitement to discrimination, hostility or violence.” The governor’s order places the US at risk to litigation challenges from the international community over the nation’s failed sovereignty obligations to protect refugees seeking humanitarian assistance. Nor are the rights of refugees limited to the international sphere.

Independent of the above, federal law underscores this as an “incident of sovereignty belonging to the government of the United States.” The Supremacy Clause delineates that the United States Constitution, federal statues and treaties are the “Supreme law of the land.” Attendant to federal authority expands to the federal preemption doctrine that stems from the supremacy clause. Federal preemption occurs when federal law “occupies” a “field” when “there is no room left for state” interferences. Conflicting orders and state statues for example yield to federal governance of an area “occupied” by federal law.

Tethered to the international procedural and substantive protection of refugees are the contractual agreements and commerce with foreign nations as authorized under the supremacy clause and commerce clause of the constitution. Precluding entry into Indiana oversteps moreover federal jurisdictional authority over the national uniformity of federal immigration law goals. Additionally constitutional provisions also demonstrate the governor’s action curtails the ability of the US to engage in foreign commerce.

As authorized under the constitution requiring “a uniform Rule of Naturalization,” Congress moreover enacted the Immigration and Nationality Act. The INA governs the entry and exclusion of refugees into the US. Numerous supplementary protections under the INA accordingly extend to refugees, such as the Authorization for Programs for Domestic Resettlement and Assistance to Refugees. This provision enumerates the realm of services distributed in conjunction with state services.

Nor are the rights of refugees limited to international scrutiny and the INA. Supplemental to the above includes the Fourteenth Amendment that extends to refugees in the US. The Fourteenth Amendment, which is not limited strictly to only citizens, declares: “Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In sum not only thwarting state action but also risking the state to protracted challenges for its unequal treatment of Syrian refugees.

Further protection benefiting refugees extends to states in conjunction with federal funds and thereby bans discrimination against qualifying recipients. Title VI of the Civil Rights Act of 1964, for example provides: “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Targeting Syrian refugees separate and apart from other refugees witnesses the governor’s order directly violating the equal protection clause.

Further rights extend to state law and its contractual agreements with the federal government specific to refugee resettlement. Against the federal trajectory and constraints, Governor Pence’s proclamation irreconcilably bars all state agencies from performing their federally contracted promises to provide shelter in the state. This order includes the Indiana Family and Social Services Administration, which is situated within the state’s Refugee Resettlement Office. The Refugee Resettlement Office is responsible for expediting the control of federally-funded resources to resettle refugees into the state. Prior to refugee settlement the agencies are contractually bound to adhere to federal law before funds are distributed and which the state had received prior to Syrian entry.

Federal funding subsequent to state contractual agreements entitles refugees to emergency assistance, with funds distributed through local state agencies for distribution. Federal assistance facilitate refugees qualifying for such programs as the Temporary Assistance For Needy Families, Medicaid and food supplement programs such as Supplemental Nutritional Assistance Program. To expedite their resettlement refugees qualify for employment and training services such as English language instruction. Refugees also can avail mental and health services through the State Department of Health, which is responsible for various health related screening and services.

Federal funds expended in preparation for the refugees have thus far been expended and the first family slated for resettlement in Indiana was redirected to another state. Any funds expended thus far in anticipation of the family will not be reimbursed. The governor’s ban accordingly not only breaches the intent and goals of international law and principles, but also prohibits federally funded contractual obligations, objectives and goals. In contrast, the ban is otherwise promoting fear without cause and exposing the state to litigation expenses defending the indefensible.

Guadalupe T. Luna is a Professor of Law at Indiana Tech Law School.

Suggested citation: Guadalupe T. Luna, Federal and International Constraints on State’s Refusal to Accept Syrian Refugees, JURIST – Academic Commentary, December 29, 2015, http://jurist.org/forum/2015/12/