Refugee resettlement federalism.

• Author: Xi, James Y.
• Position: NOTE

Table of Contents Introduction I. Refugee Resettlement in the United States A. How Refugee Resettlement Works B. History of the Refugee Act of 1980 II. Resettlement Mismatch A. Fort Wayne, Indiana B. Clarkston, Georgia C. Manchester, New Hampshire III. A Functional Case for Refugee Resettlement Federalism A. The Mechanics of Federal-Locality Bargaining B. The Functional Benefits of Refugee Resettlement Federalism 1. Ensuring better "matching" 2. Correcting information asymmetries 3. Correcting funding mismatches 4. Rediscovering political accountability C. Confronting Concerns 1. Holdout costs 2. Ideological considerations Conclusion Introduction

Within weeks of the Islamic State's attack on Paris in November 2015 and the discovery that one of the attackers carried a fake Syrian passport, twenty- eight American governors announced their opposition to resettling Syrian refugees within their states. (1) But despite the states' spirited opposition, courts and commentators have universally agreed that states have no authority to block resettlement of Syrian refugees within their borders. (2) After all, allowing states to do so would violate the two most longstanding and firmly rooted principles of immigration law: the exclusive power of the federal government to regulate immigration and the equally canonical corollary that states may not meddle in immigration policy. (3) These principles continue to be invoked, almost reflexively, despite being attacked over the years for their interpretive fidelity, (4) descriptive reality, (5) and functional desirability. (6) Yet if one looks closely, there are actually many good reasons to give localities a say in determining where refugees are ultimately resettled. Local officials, after all, are in the best position to understand the local factors and conditions that greatly affect the lives of refugees, such as their own capacity to absorb refugees and the availability of employment opportunities, affordable housing, and other resources.

For precisely these reasons, Congress intended for state and local officials to have a robust role in the refugee placement process. The Refugee Act of 1980, (7) as amended, provides that "local voluntary agency activities should be conducted in close cooperation and advance consultation with State and local governments." (8) It requires the federal government to "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." (9) The Act also commands that the federal government, "to the maximum extent possible, take into account recommendations of the State" regarding "the location of placement of refugees within a State." (10)

But despite Congress's clear intentions, the federal government continues to monopolize refugee placement decisions with little to no input from local officials. In a 2012 investigatory report, the U.S. Government Accountability Office (GAO) revealed that despite the mandate to consult with state and local officials, most federal actors charged with placing refugees do not do so. (11)

Unsurprisingly, then, refugees are often placed in communities that are shockingly unprepared to receive them, and so they fail to receive the critical services they need. (12) As one refugee advocate described, "I think it's unfair for the government to put a ton of refugees in a city and not equip [the city] with the resources to handle them." (13) A scathing report by the Georgetown University Law Center's Human Rights Institute concluded:

[T]he United States is opening its gates to refugees and simply forgetting about them after they have arrived. In the process, the United States is in danger of failing to meet its legal obligations to extend protection to the most vulnerable refugees, promote their long-term self-sufficiency, and support their integration. (14) And because the arrival of refugees often strains local services in communities unprepared to receive them, the current national-centric system tends to exacerbate hostilities between refugees and local communities. (15)

This Note argues that giving local governments a more meaningful role in the refugee placement process--a right to refuse refugees--will better match refugee groups with communities capable and willing to welcome them. Scholars across the political spectrum have made the case for local involvement in traditional immigration policy--known as immigration federalism. (16) Little ink, however, has been spilled on the desirability of local involvement in refugee policy. This Note helps fill that gap.

A system of "refugee resettlement federalism" would work like this: to persuade localities to accept a group of refugees, the federal government must encourage them to do so through federal grant money. (17) To ensure localities use the money to provide needed services to the refugees, the federal government may impose conditions on the grant. Under its spending power, the federal government has broad leeway to do so. It may require localities to provide certain services to the refugees, such as financial assistance, job training, housing assistance, health screenings, mental health services, and "English as a second language" (ESL) instruction in local schools. It may also require localities to comply with antidiscrimination requirements. Individual localities will then evaluate the costs and benefits of accepting refugees to determine whether the bargain is worth it. Because localities will subjectively value their right to refuse differently depending on locality-specific considerations and the characteristics of the refugees in question, different localities will require different amounts of money from the federal government to relinquish their right to refuse. The federal government will then choose the best offer--the locality that demands the least money. The locality that demands the least money is the locality that subjectively values its right to refuse the least. Such a system will tend to resettle refugees in localities that are willing to welcome them.

This Note argues that such a system is functionally desirable--in other words, that it is good policy (18)--for four reasons. First, unlike the current national-centric system, refugee resettlement federalism matches refugee groups with communities eager and able to welcome them. This benefits refugees as well as the localities in which they settle: refugees are more likely to receive the services they need, and localities are less likely to have to divert resources to provide for refugees they are ill equipped to handle. Second, refugee resettlement federalism ensures that the federal government provides localities with much-needed information about refugees before settlement. This is important because it helps localities better prepare their social services infrastructure for increased demand. More significantly, it helps localities tailor their services to the unique needs of the refugees. Third, refugee resettlement federalism ensures that localities have sufficient funds to provide for the refugees. Rather than the reactive one-size-fits-all funding under the current system, funding will now proactively address the refugees' needs. Fourth, refugee resettlement federalism ensures that the federal government is accountable for the number of refugees it accepts. Under the current system, the federal government reaps the political benefits of accepting refugees without fully internalizing the costs, which are passed on to local governments. This creates political accountability problems not unlike those described by Justice O'Connor in New York v. United States, the Supreme Court's seminal anticommandeering case. (19)

This Note proceeds in three Parts. Part 1 explains the current refugee resettlement framework in the United States. Through an analysis of the Refugee Act of 1980 and its subsequent legislative history, this Note reveals that Congress envisioned a robust role for state and local officials in determining where refugees are resettled. Using three case studies, Part II illustrates that despite Congress's express intent, federal actors largely bypass state and local officials when deciding where refugees will be resettled. The case studies illustrate how the current system benefits neither the refugees nor the communities in which they are resettled.

Part III makes the functional case for a system of refugee resettlement federalism. Part III.A explains that our system of government is riddled with similar bargaining arrangements. Indeed, refugee resettlement federalism is not different in kind from other cooperative programs between the federal and nonfederal governments--such as the Clean Air Act, Medicaid, and the Affordable Care Act. Part III.B lays out the functional benefits of refugee resettlement federalism. And finally, Part III.C addresses potential concerns with this proposal. In short, it addresses concerns that refugee resettlement federalism will be plagued by holdout costs and will permit states to block refugees on the basis of ideology.

1. Refugee Resettlement in the United States

   1. How Refugee Resettlement Works

      The Refugee Act of 1980 authorizes refugees' admission into and resettlement in the United States. (20) The purpose of the Act is twofold: first, "to provide a permanent and systematic procedure for the admission ... of refugees of special humanitarian concern to the United States" and second, "to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted." (21) Under current law, a refugee is a person who "is unable or unwilling to return to" his or her home country "because of persecution or a well-founded fear of persecution on account of race, religion...