In a tense exchange with attorneys defending Indiana Gov. Mike Pence’s order to prevent Syrian refugees from resettling in his state, two federal judges sharply criticized the legal rationale behind the effort.
During oral arguments on Wednesday in Exodus Refugee International v. Pence — a court battle focusing on whether the state may prohibit the resettlement of Syrians on the grounds that they could be terrorist threats — Judges Richard Posner and Frank Easterbrook objected to Indiana’s attempt to refuse assistance to people based on their nationality and country of origin.
“Honestly, you are so out of it,” Posner said. “You don’t think there are dangers from other countries?”
In a previous ruling, a lower court said the narrow focus on Syria “clearly discriminates” against refugees from that country, a perspective that Posner and Easterbrook appeared to endorse.
“When a state makes an argument that’s saying, ‘we’re differentiating based on whether someone is from Syria, but that has nothing to do with national origin,’ all it produces is a broad smile,” Easterbrook told Indiana Solicitor General Thomas Fisher on Wednesday.
Last year, citing “terrorism concerns,” Pence attempted to withhold federal funds for groups that resettle refugees — including Exodus Refugee Immigration, which arranges housing, food and clothing, and other services for people fleeing from Syria. The American Civil Liberties Union of Indiana said the order violates the Equal Protection Clause and Title VI of the Civil Rights Act and “arguments by Indiana state officials were ‘built on fear,’” the Associated Press reported.
As part of Indiana’s argument about why it’s necessary to block the resettlement of these refugees, Fisher pointed to senior Obama administration officials saying that it’s difficult to vet people from war-torn countries that may not have a comprehensive criminal and terrorist database.
“Wait, the governor of Indiana knows more about the status of Syrian refugees than the U.S. State Department does?” Easterbrook asked. “And that’s the ground for the decision?”
“Are Syrians the only Muslims Indiana fears?”
“Are Syrians the only Muslims Indiana fears?” Posner asked.
As The Atlantic pointed out, “oral arguments can be a flawed indicator for how judges might rule on a case. But the back-and-forth between the solicitor general and the panel offered little hope for Indiana.”
Still, promising to ban Syrian refugees from the country has been a regular applause line for Republican vice presidential candidate Pence and his running mate Donald Trump since the terror attacks in Paris, France and in San Bernardino, California last year. Trump has labeled Syrian refugees as a “Trojan horse,” repeatedly warning, “we have no idea who these people are.”
Soon after the Paris attacks, Pence cited a Syrian passport found next to one of the terrorists— now believed to be fake — as part of his rationale to stem the flow of Syrian refugees from entering the United States.
More than two dozen mostly Republican governors tried to block Syrian refugees from their states. But their efforts haven’t fared very well in court so far. A federal judge denied Texas’ lawsuit in June on the basis that “it had no authority over resettlements handled by the federal government,” the Associated Press reported. And a court dismissed Alabama’s case in July.
However, Pence could bring this legal battle all the way to the White House, where the Trump team’s anti-immigrant policy plans could have a dramatic effect on the fate of Syrians who are hoping to find refuge in the midst of a five-year civil war.
More than 50 percent of Syria’s population have been displaced and about 4.5 million Syrian refugees are staying in neighboring countries alone.
Before they can step foot within the United States, Syrian refugees undergo a nearly two-year long process that occurs abroad — including doing interviews, providing proof, and running background checks. What’s more, as Alex Nowrasteh, the immigration policy analyst at the libertarian think tank Cato Institute, recently noted in a report, “the chance of an American being murdered in a terrorist attack caused by a refugee is 1 in 3.64 billion per year.”
This week’s oral arguments came on the same day that the Obama administration has announced plans to accept upwards of 110,000 global refugees, with a large portion dedicated to refugees from the Near East/South Asia, an area that includes Syria. About 100 refugees have resettled in Indiana since February.