Posner Pummels Pence’s Position on Syrian Refugees

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Bernie Pazanowski

Oct. 4 — Indiana Governor Mike Pence’s fear that Syrian refugees are a Trojan Horse for terrorists is nothing more than “nightmare speculation,” the U.S. Court of Appeals for the Seventh Circuit said Oct. 3 ( Exodus Refugee Immigration, Inc. v. Pence , 2016 BL 328805, 7th Cir., No. 16-1509, 10/3/16 ).

Indiana can take steps to avoid paying for the resettlement of refugees within its borders, but it can’t prevent them from entering the state completely, the court said in an opinion by Judge Richard A. Posner.

The Seventh Circuit upheld a preliminary injunction against the state’s refusal to pay resettlement costs for Syrian refugees.

Pence engaged in discrimination on the basis of nationality without any justification, Kenneth J. Falk, ACLU of Indiana, Indianapolis, told Bloomberg BNA Oct. 4.

If Pence was allowed to proceed with his plan, the way we handle refugees in this country would have radically changed from national to state control, Falk said.

Instead, the court made clear that states don’t have any prerogative in the area, he said.

While Falk hopes that this ruling puts an end to the dispute, Corey Elliott of the Indiana attorney general’s office told Bloomberg BNA Oct. 4 that the attorney general is reviewing the opinion to decide on the next steps.

A spokesperson for Pence issued a statement reiterating that the governor’s highest priority is the “safety and security of the people of Indiana.”

Federal Domain

Federal law governs immigration in the United States, and under the Refugee Act, states may submit a resettlement plan to be reimbursed by the federal government for helping to integrate refugees into American society.

Those services, however, can’t be denied on the basis of “race, religion, nationality, sex, or political opinion.”

Even though it submitted a plan, Indiana now refuses to pay its third-party social service providers for services provided to refugees from Syria.

One provider, Exodus Refugee Immigration Services Inc., was granted a preliminary injunction against Indiana’s new policy.

Compelling Interest

Though Indiana has a compelling interest in protecting its residents, it presented no evidence that Syrians entering the country are a threat, the court said.

Before entering the United States, refugees must undergo a rigorous screening process, and to date “no Syrian refugees have been arrested or prosecuted for terrorist acts or attempts in the United States,” it said.

Under federal law, a governor can’t “deport to other states immigrants he deems dangerous,” it added.

Pence argued that the new policy isn’t discrimination on the basis of nationality because it’s based solely on the threat he thinks Syrians pose to the safety of Indiana residents.

The court said that argument is “the equivalent of [Pence] saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating.”

“But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality,” the court said.

Even though Indiana can withdraw from the refugee assistance program, the federal government can still distribute federal aid to refugees in the state “without the involvement of the state government,” the court said.

Posner and the other two judges who joined the opinion, Frank H. Easterbrook and Diana S. Sykes, were all appointed to the court by Republican presidents.

Falk argued for Exodus. The Indiana attorney general’s office argued for the state.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

For More Information

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law