- Additional Resources
- Program in Refugee and Asylum Law
University of Michigan Theodore J. St. Antoine Collegiate Professor of Law
The movement among many Governors after the Paris attacks to oppose continuing resettlement of Syrian refugees within the United States calls for some reminders about the allocation of power between the federal government and the states. Put simply, several Governors have purported to exercise a power that they do not have: the power to bar entry to refugees. There are things that state governments could do to make it less likely that refugees will come to their states, but closing the door is not one of them.
The Governors who have said that their states will not accept Syrian refugees include New Jersey’s Chris Christie, Georgia’s Nathan Deal, Illinois’s Bruce Rauner, and several others. These statements seem to imagine—or to expect that their audiences will imagine—a world in which people need the permission of state governments in order to enter the states. We do not live in that world. There are no border controls at the state lines, and states do not issue visas. As the Governors surely know. It is the federal government, and the federal government exclusively, that decides who may enter the United States, and once a person is legally present within the United States, he or she may move about without the permission of state governments. Illinois can no more bar Syrian refugees from settling there than it can prevent U.S. citizens from entering that state from Wisconsin.
Certainly many and likely all of the Governors know that they are not in the international visa business. And many of them have accordingly not claimed that they will bar entry to Syrian refugees but said instead that they want to persuade the federal government to stop or slow the entry of Syrian refugees. Michigan’s Rick Snyder is emblematic of this group. And it is worth noting that state officials trying to persuade federal officials to take certain policy steps is a normal and important aspect of the federal system, as well as often an effective one. State governments are, for good reason, among the most powerful lobbying interests in Washington D.C. In the present scenario, it took very little time for the White House to hold a call with more than thirty governors to discuss their concerns, and it took only a couple of days more for Congress to hold a vote precipitated largely by the gubernatorial policy offensive. To put the point in terms of standard federalism theory, the states lack the autonomy or sovereignty necessary to bar entry to refugees, but they are important players in the process federalism that shapes national policy.
There is also another thing that several Governors are threatening to do to reduce the flow of refugees to their states—something that sounds in cooperative federalism. Most refugees need help getting their lives restarted—housing, language education, employment leads, and other social services. A fair amount of that resettlement work is run through state social-service agencies with the support of federal dollars. That pattern is typical of cooperative federalism in programs from Medicaid to education to highway funding. The state governments are the ones with the personnel and capacity necessary for implementing federal policy on the ground, and the federal government tends to govern with and through the state governments rather than around them. And because the state governments are necessary components of this machine, they retain the ability to influence, shape, and sometimes frustrate federal policy by dragging their feet or simply refusing to play along. Just as states can choose to refuse Medicaid funding and not implement federal policy preferences with regard to health care for poor people, states could choose to refuse social-service funding and cease providing the resettlement assistance to which that funding is tied. Accordingly, several governors have said not that they will bar entry to refugees but that their states will not provide affirmative assistance in resettlement—the theory being that refugees are likely to be routed to places where resettlement is facilitated, not to places where it isn’t.
It is worth noting, however, that a state could not decide to decline federal funding only in connection with Syrian refugees. A state that tried to do that would no longer be within the legitimate scope of its decisionmaking about the delivery of social services; it would be trying to make foreign policy, and that it cannot do. Indeed, putting foreign affairs under the firm control of one central government was one of the primary motivations of the Founders in creating the Constitution in the first place.