For background, see my post here about the annual refugee admissions ceiling and my contention that the President had (still has!) the authority under the Refugee Act of 1980 to stay under the ceiling set by Obama (110,000) or the new ceiling he has set (50,000). There is nothing in the Act which compels him to bring in numbers approaching the ceiling.
The judge in Hawaii seems to think the judiciary has the right to set numbers, and apparently the Maryland judge is headed in the same direction.
(BTW, we reported yesterday that Trump’s Dept. of State is still admitting refugees and another 31 came in since yesterday.)
Michael Patrick Leahy (Breitbart) thoroughly addresses the subject of whether courts can set the refugee admissions ceiling in an article entitled:
Federal Judge Who Blocked Trump Travel Ban Will Rule on Plaintiffs Request to Double Number of Refugees in FY 2017
Leahy explains the role of Congress in appropriating money, but the 1980 Act itself placed most of the power in the hands of the President. I’m guessing that in 1980, Senators Kennedy, Biden and President Jimmy Carter never envisioned a President like Donald Trump, or the degree to which American citizens would object to admitting such poverty to the country, so it is silent on the subject of how low a Prez can go.
Anyway, here is Leahy:
Judge Theodore Chuang of the U.S. District Court in Maryland, who issued a temporary restraining order on March 15 halting part of President Trump’s Executive Order 13780, has scheduled a hearing on March 28 to consider the merits of a request made by the plaintiffs in their complaint to revoke the section of that exec order that limited the maximum number of refugees authorized to enter the United States in FY 2017 to 50,000.
Several legal scholars and political commentators have questioned Chuang’s impartiality, in part because he served as deputy general counsel of the Department of Homeland Security in the Obama administration, as Breitbart reported.
In the very first sentence of his March 15 decision, Chuang makes an error of fact which may indicate how he will rule on March 28.
“On March 6, 2017, President Donald J. Trump issued an Executive Order which bars, with certain exceptions, the entry to the United States of nationals of six predominantly Muslim countries, suspends the entry of refugees for 120 days, and cuts by more than half the number of refugees to be admitted to the United States in the current year,” Judge Chuang writes. (emphasis added)
With this statement, Judge Chuang makes it clear that he accepts the argument made by plaintiffs HIAS (formerly Hebrew Immigrant Aid Society) and the International Refugee Assistance Project (IRAP) about refugee resettlement numbers in FY 2017. The plaintiffs argue that former President Obama’s September 22, 2016 “presidential determination” that he wanted Congress to fund the resettlement of up to 110,000 refugees in the United States in FY 2017 means that Congress must fund the resettlement of 110,000 refugees this fiscal year, and that President Trump has absolutely no say in the matter.
The facts and the law say otherwise.
Leahy follows here with great detail about the role of Congress in appropriating money for resettlement. Just a reminder that we argue that 50,000 is NOT THAT LOW when analyzing all years since 9/11.
Congress, however, has, of now, only appropriated funding sufficient to resettle 48,901 refugees in the United States in FY 2017, which is 1,099 below the limit of 50,000 President Trump established in Executive Order 13780.
Officials at the Department of State as well as all the refugee resettlement agencies–including HIAS–are well aware that their funding for FY 2017 is about to run out, and that circumstance is entirely unrelated at this time to President Obama’s September 22 “presidential determination” that set the maximum limit of refugees authorized to resettle in the United States in FY 2017 at 110,000.
[….]
The HIAS/IRAP complaint on which Judge Chuang will hold a hearing on March 28 is all about continuing the flow of federal funds to these VOLAGs who are almost completely reliant on the taxpayers to pay for their operations, and their salaries.
Much, much more here.
Go here to see, in my view, what HIAS is worried about!
This is going to be a week in courts involving refugees, more tomorrow.