Governors, Refugees and the Constitution: Oh My!
More than half the nation’s governors say they oppose letting Syrian refugees into their states. Among these 27 states, all but one have Republican governors. Can they reject these refugees?
The Supremacy Clause is a conflict-of-laws rule specifying that certain national acts take priority over any state acts that conflict with national law. Conflicts between national and local government is as old as the country itself.
According to The Heritage Foundation:
Federal statutes and other federal laws are, of course, “supreme” only if made in pursuance of the Constitution, and Chief Justice John Marshall used this language in Marbury v. Madison (1803) to support his argument that the Constitution contemplates judicial review. Thus, the Supremacy Clause does not grant power to any federal actor, such as Congress. It deals with resolving a conflict between the federal and state governments once federal power has been validly exercised. It is a straightforward interpretative rule that is addressed to all legal interpreters, including Members of Congress, federal executive officials, federal judges, state-court judges, or other state officials. It does not preclude other strategies for dealing with potential national and state conflict, nor does it allocate power between the national and state governments. Other parts of the Constitution do that.
“The decision to let a particular person into the United States or exclude them is up to the federal government,” said César Cuauhtémoc García Hernández, a visiting professor at the University of Denver’s Sturm College of Law who writes extensively on immigration law. “There’s no question about that.”
“The states have no power whatsoever to restrict travel into their territories by anyone,” concurred Stephen Legomsky, former chief counsel for the U.S. Citizenship and Immigration Services agency and now a law professor at Washington University School of Law. “That law has been clear for more than 100 years.”
Legomsky should know. The Supreme Court cited his work in 2012 when it decided Arizona v. United States, the federal government’s partly successful challenge to Arizona’s restrictive S.B. 1070 law.
“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens,” wrote Justice Anthony Kennedy.
Fine, But No Muslims
Ted Cruz believes that we should accept Christians from Syria, and only Christians, because “There is no meaningful risk of Christians committing acts of terror.” That’s untrue; therefore, it won’t work.
The Supreme Court in Church of the Lukumi Babalu Aye v. City of Hialeah held that ordinances must be neutral and generally applicable. Ordinances must be justified by a compelling governmental interest and had to be narrowly tailored to that interest.
Cruz fails here with only wanting to apply laws exclusively to Muslims. He singles out the Muslim faith which suppresses more religious conduct than necessary to achieve stated ends of allowing refugees in while protecting national security interests. Targeting religious behavior fails to survive the rigors of strict scrutiny.
Cruz knows this. These governors know this. This is politics and as disgusting as it is, it’s all apart of the game.
Special thanks to Andy Jones, JD for his contribution