When Indiana Gov. (and GOP vice presidential nominee) Mike Pence learned which three judges would examine his effort to exclude Syrian refugees from Indiana, he might have done a happy dance. The panel included Judges Frank Easterbrook and Diane Sykes, two conservative stalwarts who recently championed a voter suppression law in nearby Wisconsin. If any pair of judges would back Pence, these were the ones.
And yet, even they concluded that Pence broke the law.
The case, Exodus Refugee International v. Pence, arose out of Pence’s effort to stiff the federal government and make a charity that serves refugees pay for it. A federal law provides grants to states to help them settle refugees within their borders. States that take this money must comply with various conditions, including a requirement that “services funded under this section shall be provided to refugees without regard to race, religion, nationality, sex, or political opinion.”
Indiana took the money, and it contracted with a nonprofit, Exodus Refugee International, to provide services to refugees with that money. Yet Pence also forbade “Exodus or any other resettlement agency” from being “reimbursed for the costs of providing social services to Syrian refugees.”
So this is a simple case. Pence took the federal government’s money. He did so on the condition that he wouldn’t discriminate on the basis of “nationality.” And now he’s decided that he doesn’t want to follow that condition. That’s not allowed, and it is a testament to just how straightforward this case is that the United States Court of Appeals for the Seventh Circuit disposed of it in an opinion that is only six pages long.
The opinion, which was joined by both Easterbrook and Sykes, was authored by Judge Richard Posner. Posner, a Reagan-appointee, was once a bit of a conservative icon himself. He has since emerged as more of a gadfly, tossing rhetorical bombs at a conservative movement he once embraced and now finds increasingly unserious. As Posner himself said in 2012, “I’ve become less conservative since the Republican Party started becoming goofy.”
Posner’s opinion in Exodus Refugee, while short, more than lives up to his reputation for snarky unwillingness to suffer fools kindly. In response to Pence’s claim that Syrians should be excluded because they present some kind of terroristic threat, Posner cuts Pence down with stark facts. The governor “provides no evidence that Syrian terrorists are posing as refugees or that Syrian refugees have ever committed acts of terrorism in the United States,” and “as far as can be determined from public sources, no Syrian refugees have been arrested or prosecuted for terrorist acts or attempts in the United States.”
Similarly, Posner likens Pence’s defense of his anti-Syrian policy to the most absurd defenses of outright racism:
[Pence] argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana. But that’s the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.
The practical effect of Posner’s opinion is that a temporary order issued by a lower court, which allows Exodus to continue to receive reimbursements for helping Syrian refugees, will remain in effect. Given the appeals court’s dismissive tone, and the fact that even Easterbrook and Sykes were unmoved by Pence’s arguments, it is likely that this temporary order will eventually be made permanent.