Tennessee legislators just lost a lengthy legal battle over their state’s right to refuse to fund the federal refugee resettlement program. On July 24, 2019, a federal appeals court dismissed Tennessee’s landmark lawsuit.
The story started in July 2016, when Tennessee’s Attorney General Herbert Slatery announced his refusal to follow a directive issued by the Volunteer State’s legislature to sue the federal government over refugee resettlement. The state AG added that he would not obstruct the hiring of an outside firm to begin the lawsuit.
In March 2017, Tennessee became the first U.S. state to sue the federal government over its refugee resettlement program, citing 10th Amendment violations and economic burden on the state’s taxpayers.
The 10th Amendment “says the federal government possesses only the powers delegated to it by the U.S. Constitution and that all other powers are reserved for the states.” Its text reads:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
The 10th Amendment reinforces the fundamental character of the national government as one of limited and enumerated powers. Whenever federal power is exercised, the first question is not whether it violates a person’s rights but whether it exceeds the national government’s enumerated powers.
Thomas More Law Center, outside counsel, filed the lawsuit in federal district court on behalf of the Tennessee Assembly and two state legislators. The suit argued that the federal government’s program is non-compliant with the congressional Refugee Act of 1980, which assigns full federal financial support for refugee resettlements, because individual states were forced, over time, to pay for the program.
The 1980 Refugee Act, signed into law by former President Jimmy Carter, responded to the hundreds of thousands of Vietnamese and Cambodian refugees invited to the U.S. during the late 1970s in the wake of the Vietnam conflict. It “raised the annual ceiling for refugees from 17,400 to 50,000, created a process for reviewing and adjusting the refugee ceiling to meet emergencies, and required annual consultation between Congress and the President.”
The definition of “refugee” was also brought into alignment with United Nations conventions and protocols to mean someone with a “well-founded fear of persecution.” Refugees leave their countries forcibly due to the threat of or actual persecution.
A migrant, unlike a refugee, is a person who consciously chooses to leave her or his country to pursue a better life in another country.
The 2017 lawsuit claimed that federal reimbursements for Tennessee’s refugee resettlement program were gradually eliminated by 1991. Although GOP Governor Phil Bredesen opted his state out of the federal program in 2008, citing as his reason the decreasing federal funding, the suit charged that the federal government was strong-arming Tennessee to pay the costs of refugees who were eligible for Medicaid, used public school systems or received other social services:
“The federal government — through various regulations and statutes — coerced the state to continue funding the refugee resettlement program by threatening the state with the loss of federal Medicaid funding.”
In 2016, 2,051 refugees were resettled in Tennessee. The suit claimed that the fed could withhold $7 billion of funding if Tennessee refused to provide Medicaid services to eligible refugees.
Republicans Sen. John Stevens and Rep. Terri Lynn Weaver were named as co-plaintiffs in the lawsuit. Stevens, who chaired Tennessee’s appropriations committee, said:
“[The federal government] circumvented the state policymakers’ desire to just not pay for this program. It’s a pretty significant cost to our taxpayers…We can’t be economically dragooned into paying for federal programs.”
Stevens blamed the federal government of using “economic coercion” to force states to accept federal financial responsibility:
“We can’t amend our eligibility rules to exclude refugees. We would lose our entire Medicaid funding. That’s where the coercion comes in. The people of Tennessee, through their elected policymakers, have decided they do not want to participate in this program because we don’t have control over the cost of it.”
A district court in March 2018 dismissed the case, ruling that Tennessee’s argument about losing $7 billion annually in federal Medicaid money if it refused to spend state money on refugee services through Medicaid was speculative. In addition, the case failed to allege that the federal government had threatened to withhold the money.
One U.S. Department of Justice attorney countered that even if Tennessee decided to submit a proposal that wouldn’t cover the refugees, administrative procedures and judicial review would be triggered, during which no money would be withheld:
“The General Assembly has not identified an injury that it has suffered, such as disruption of the legislative process, a usurpation of its authority, or nullification of anything it has done.”
The Thomas More Center filed an appeal with the Sixth Circuit Court of Appeals, based in Cincinnati, Ohio, hoping to overturn the district court decision.
On March 19, 2019, the Sixth Circuit Court of Appeals heard oral arguments from lawyers for both sides, the state and federal government, during the unprecedented Tennessee refugee resettlement program case.
As previously stated, on July 24, 2019, the 6th Circuit federal appeals court dismissed Tennessee’s lawsuit against the federal government over refugee resettlement. Judge Danny Boggs upheld the lower court’s ruling when he wrote:
“Because the General Assembly has not alleged an injury that gives it standing, and because the General Assembly has not established that it has the authority to bring suit on behalf of Tennessee, we affirm the district court’s judgment.”
So much for the Volunteer State’s rights as guaranteed by the 10th Constitutional Amendment. Will your State be next?