The federal Refugee Act of 1980 gives President Obama broad discretion over America’s refugee policy — discretion that cannot be overridden by a state government. Nevertheless, Texas Attorney General Ken Paxton (R) filed a lawsuit in federal court on Wednesday seeking to halt “any and all activities of the [United States] regarding placement of Syrian refugees in Texas” until the Obama administration complies with obligations Texas believes are required by law. Currently, six Syrian refugees are scheduled to be resettled in Dallas on Friday.
But Texas is wrong about what the law requires.
Texas hangs its hat on two provisions of the Refugee Act, the first of which provides that federal officials overseeing refugee resettlement “shall consult regularly (not less often than quarterly) with State and local governments and private nonprofit voluntary agencies concerning the sponsorship process and the intended distribution of refugees among the States and localities before their placement in those States and localities.” According to Texas, the federal government “breached this statutory duty of advance consultation.”
There are a number of problems with this legal theory. Even if Texas is correct that the federal government violated some legal obligation, for example, it is unlikely that they actually have the right to bring a lawsuit enforcing the provision of law that they cite. Even if they do have that right, it’s also unclear why the appropriate remedy is to halt all refugee resettlement, as opposed to simply ordering the federal government to turn over the information that Texas requests. But Texas faces an even bigger problem: paragraph 14 of their own legal complaint.
In that paragraph, Texas admits that, in a phone call between federal and state officials, the federal officials informed Texas that they intend to “resettle six Syrian refugees in Dallas, Texas on Friday, December 4.” The federal government, in other words, consulted with Texas regarding “the intended distribution of refugees among the States and localities before their placement in those States and localities.” It’s not even clear what, as a matter of law, Texas is complaining about here.
Meanwhile, Texas’s second legal argument misrepresents the law. The state claims that the Refugee Act “requires” that federal refugee resettlement programs “should be conducted in close cooperation and advance consultation with State and local governments.” But even if the federal government has somehow failed to act in “close cooperation” with Texas, as the state claims, Texas is not correct about what the law “requires.”
Though the words “should be conducted in close cooperation and advance consultation with State and local governments” do indeed appear in the Refugee Act, they do not appear in a section laying out the federal government’s obligations under the law. Rather, they appear in an introductory section laying out, in broad and vague terms, the goals that Congress hoped to accomplish when it passed the Refugee Act. The language Texas quotes appears in a longer provision which provides that “[i]t is the intent of Congress that in providing refugee assistance under this section . . . local voluntary agency activities should be conducted in close cooperation and advance consultation with State and local governments.”
This kind of statement of purpose is not meaningless. Such statements, for example, are often cited by courts to help resolve ambiguities that appear elsewhere in the same law. But they do not generally impose requirements on the federal government.
So Texas should be out of luck. They are also potentially hobbled by another quirk of this particular case. In previous legal attacks on the Obama administration’s policies, state attorneys general were able to engage in forum shopping, a practice where lawyers shop around for judges that are likely to rule in their favor and then file their lawsuit in that judge’s court in the hopes that they will be assigned a favorable jurist. In Texas’s high-profile challenge to several of President Obama’s immigration policies, for example, the state’s case was assigned to Judge Andrew Hanen, a judge with a history of advocacy in favor of harsher immigration policies, after what was widely viewed as a successful effort at forum shopping.
Yet, as attorney Greg Lipper points out on Twitter, Texas may have needed to file their challenge to the refugee resettlements “in the district that includes Dallas,” since that is where the six refugees the federal government plans to resettle on Friday will reside. The United States District Court for the Northern District of Texas is hardly a hotbed of liberalism — most of its judges are Republican appointees — but Texas, at the very least, will not be able to handpick their judge as they appear to have done in Judge Hanen’s case.