Although stymied by the courts at other levels, the important Tenth Amendment case involving the Constitutional challenge against the federal government’s ever increasing cost-shifting to the states for the care of refugees is still alive.

There was a time when I thought that the political process was the place to change refugee policy in America, but truthfully I am seeing little hope of any real change as Trump enters his fourth year in the White House.

Cutting the number of admissions is fine, but no real structural changes have been sought for the UN/US Refugee Admissions Program by the administration. (The governor approval process seriously backfired, and Congress is useless as members cower in fear of being called racists.)

Maybe there is still some hope that the courts will see how unfair and unconstitutional it is for states to carry a financial burden placed on them by the feds.

From the Thomas More Law Center:

Eagle Forum Files Brief Supporting Thomas More Law Center’s ‘Federalism Challenge’ to Tennessee Refugee Resettlement Program

ANN ARBOR, MI – The Eagle Forum and its Tennessee chapter added their influential voices urging the U.S. Supreme Court to grant the Thomas More Law Center’s request to review (“petition for certiorari”) a Sixth Circuit Court decision which held that the Tennessee General Assembly lacked institutional standing to challenge the Federal Refugee Resettlement program. Their amicus brief (“friend of the court brief”), authored by Nashville attorney Joanne Bregman, was filed late last week.

Bregman observed, “The ongoing conversations between the President and state governors concerning recovery from the COVID-19 pandemic is bringing a renewed interest in federalism – the same constitutional principle of dual sovereignty which is the basis of the General Assembly’s lawsuit against federal commandeering of state dollars to fund the federal refugee resettlement program.”

The Thomas More Law Center (“TMLC”), a national nonprofit public interest law firm based in Ann Arbor, Michigan, and John Bursch, a nationally prominent appellate lawyer are representing the General Assembly without charge. Bursch authored the General Assembly’s petition for certiorari, which asks the Supreme Court to overturn the Sixth Circuit’s ruling.

The petition for certiorari, filed on March 16, 2020, objects to forcing Tennessee taxpayers to pay the costs of the resettlement: “If a state legislature cannot vindicate its rights in court when the federal government picks the state’s pocket and threatens the state if it dare stop providing funds, then federalism is a dead letter.”

The Eagle Forum, a national conservative organization with 80,000 members founded by the late legendary Phyllis Schlafly in 1972, has significantly impacted public policy at both state and national levels. The Tennessee chapter headed by Mrs. Bobbie Patray was the first state chapter to question the power of the federal government to coerce state legislators to use state revenues to fund the federal refugee resettlement program.

Richard Thompson, TMLC’s President and Chief Counsel, commented:

“Justice Scalia considered the principles of federalism, the same principles that undergird our challenge to the federal refugee resettlement program, more important to the American democracy than the Bill of Rights.

Considering the continued controversy between the Nation’s governors and the President over the best way to recover from the COVID-19 pandemic, a grant of certiorari would present the Supreme Court with an opportunity to calm the waters over their conflicting claims of power by expounding on Federalism 101.”

Continued Thompson, “Because of the significance of this issue, I’m grateful that the Eagle Forum and its Tennessee chapter were able to assist our efforts to obtain Supreme Court review.”

According to the amicus brief: “Forcing state legislators to expend state resources outside of the normal appropriations process directly interferes with their duties to the state and to their constituents. If the federal government cannot compel a state to fund federal programs, then a state should not be forced to divert funding from essential and traditional state government services in order to operationalize a federal program from which the state has withdrawn.”

Tennessee initially agreed to participate in the federal refugee resettlement program. But when the federal government refused to cover the state costs as it originally promised and as the 1980 Refugee Act intended, Tennessee withdrew from the program in 2008. Nevertheless, the federal government merely designated Catholic Charities of Tennessee, a non-governmental private organization, to continue the program while still forcing the state to pay for it.

Bregman notes the threat to state sovereignty powers by federally coerced spending, especially at a time when the needs of Tennessee’s citizens are dire, referring to the COVID-19 pandemic and a series of deadly tornadoes which ripped through 100 miles of Tennessee counties.

The amicus brief concludes, “There is no room in the Constitution’s framework to permit the federal government or its agencies to take state funds without the express consent of the state’s appropriating body.”

Read the Eagle Forums’ entire amicus brief here.

Read TMLC’s Petition for Certiorari here.

Two additional briefs were filed, see here and here.

I know it’s a little hard to believe that there are other things going on in America besides the virus crisis, but here is important news I should have mentioned sooner.

The Thomas More Law Center has filed a petition to attempt to get the Supreme Court to review the Tenth Amendment case that has been working its way through the legal system.

The heart of the case is the Tenth Amendment argument that the federal government has no Constitutional power to shift the cost of refugee resettlement onto state governments as it has been doing for decades.

TMLC is looking for other like-minded organizations to file amicus briefs in support of their argument which has far-reaching implications beyond just the refugee program!

Here is their press release from earlier this month.

Thomas More Law Center Petitions U.S. Supreme Court to Review Tennessee’s Challenge to Federal Refugee Resettlement Program

ANN ARBOR, MI – In what could have far reaching implications for all states seeking to withdraw from the federal refugee resettlement program, the Thomas More Law Center (“TMLC”) collaborating with attorney John Bursch, filed a certiorari petition Monday, March 16 in the U.S. Supreme Court.

 

The petition asks the Court to hold that the Tennessee General Assembly has standing to challenge the constitutionality of the federal government’s forced state funding of the federal refugee resettlement program. ​

The Thomas More Law Center (“TMLC”) is a national nonprofit public interest law firm based in Ann Arbor, Michigan. Both TMLC and Mr. Bursch are representing Tennessee without charge.

John Bursch, a former Michigan state solicitor general, nationally prominent appellate lawyer and past chair of the American Bar Association’s Council of Appellate Lawyers, authored the petition for certiorari.

The petition argues that the issues presented in the Tennessee case cut to the core of the Constitution’s protection of states against overreach by the federal government. The Constitution does not give Congress the authority to appropriate state funds, contrary to the wishes of the state, to fund a federal program.

According to the petition: “If a state legislature cannot vindicate its rights in court when the federal government picks the state’s pocket and threatens the state if it dare stop providing funds, then federalism is a dead letter.”

The petition seeks to overturn a Sixth Circuit Court of Appeals decision which ruled that the General Assembly does not have institutional standing to challenge the constitutionality of the resettlement program. The cert petition does not challenge the federal government’s right to resettle refugees in Tennessee. What it objects to is forcing Tennessee taxpayers to pay the costs of the resettlement.

Richard Thompson, president and chief counsel of TMLC, noted: “From the beginning, opposition to the federal refugee resettlement program has been about protecting Tennessee’s state sovereignty from impermissible federal interference. The federal government cannot simply commandeer state tax dollars to fund a purely federal program to extend benefits to noncitizens.”

Tennessee initially agreed to participate in the federal resettlement program because the federal government promised to reimburse 100 percent of the cost. In fact, Congress crafted the 1980 Refugee Act specifically intending that states not be taxed for programs they did not initiate and for which they were not responsible. As is often the case, however, the federal government began shrinking its financial support to the states and by 1991 eliminated it entirely. Due to the mounting costs the federal government was not covering as promised, Tennessee withdrew from the program effective June 30, 2008. But that didn’t stop the federal financial burden on Tennessee taxpayers. The federal government simply designated Catholic Charities of Tennessee, a non-governmental private organization, to continue the program with state dollars.

Between 2007 and the end of 2019, resettlement agencies pumped more than 15,000 refugees into Tennessee cities and towns. They came from Afghanistan, Bosnia, Burma, Central African Republic, Congo, Eritrea, Iran, Iraq, Somalia, Sudan 3 and many other countries. They often arrive from United Nations camps in poor health, with no job skills or English-language abilities.

The resulting cost to state taxpayers amounted to tens of millions of dollars. In 2015 alone, the refugee-related Medicaid costs paid by Tennessee tax dollars topped $30 million.

Instead of resolving the merits of Tennessee’s claim, the Sixth Circuit Court of Appeals sidestepped the pivotal constitutional issue concerning federalism by ruling that the Tennessee General Assembly lacked standing to bring its lawsuit.

The petition filed on March 16, 2020, argues that this was in error:

“The General Assembly is an institutional plaintiff asserting an institutional injury; the federal government has co-opted the General Assembly’s appropriation power and impaired its obligation to enact a balanced state budget. That is because the federal government can siphon state funds—to help pay for a federal program from which Tennessee has withdrawn.”

TMLC originally filed the federal lawsuit in March 2017 on behalf of the State of Tennessee, the Tennessee General Assembly, and state legislators Terri Lynn Weaver and John Stevens challenging the commandeering of millions in state taxpayer dollars for a purely federal program.

A U.S. district court judge dismissed the case on the federal government’s motion. The Sixth Circuit affirmed the lower court’s dismissal on the sole grounds that the General Assembly lacked standing. It never reached the merits of the case.

The Supreme Court now has a chance to shed light on the proper role of the states relative to the federal government—which is the bedrock constitutional principle of federalism.

The petition states: “The (Tennessee) General Assembly does not object to the federal resettlement program. It does not even object to the federal government resettling 4 refugees in Tennessee. The General Assembly does object to the federal government reaching its hand into Tennessee’s pocket to pay for the cost of such a program, particularly when the enabling legislation was enacted with the promise to reimburse states for all expenses incurred in this program.”

The federal government mandates that states provide Medicaid to otherwise eligible refugees, or face termination of federal benefits.

Accordingly, the federal government forces Tennessee to continue funding the refugee program by threatening to pull $7 billion in federal Medicaid funding, which represents 20 percent of the state’s total budget.

The argument in favor of the General Assembly’s standing is bolstered by the fact that both chambers of the Tennessee General Assembly voted overwhelmingly in 2016 in favor of filing a civil lawsuit challenging the constitutionality of the federal refugee resettlement program. The State Senate passed Senate Joint Resolution 467, by a vote of 27-5 while the House voted 69-25 to pass the same resolution.

And without any waiting period they can automatically apply for all welfare programs provided by the State of Tennessee.

Read TMLC’s Petition for Certiorari here. 

If you know any organization that is in agreement with the broad-reaching tenets of the case, please have them contact the Thomas Moore Law Center immediately.  Time is short!