The terrorist attacks in Paris and Bamako, Mali, were horrific. We do need to be more vigilant in our efforts to deter such attacks in the future. Unfortunately, in this country certain folks are trying to take political advantage of the events.
We have a presidential candidate who bellows the police should conduct 24/7 surveillance of mosques and the government should register all Muslims residing in America, no matter what their citizenship status. He shows little regard for the First, Fourth and Fourteenth Amendments, which, to be frank, would make him a dangerous president.
Then there are the 31 governors who have announced they oppose – in some cases will block – the resettlement of Syrian refugees to their states. Their statements are completely at odds with our fundamental value of protecting persons seeking safety from war and persecution.
Besides stirring up xenophobia, what the governors propose is unconstitutional. The federal government establishes immigration policy, including the terms of admission to the country. Once aliens are legally admitted, they are free to live in any state and enjoy the protection of the state’s laws. The Supreme Court has regularly struck down attempts by states to regulate the presence of aliens, see, e.g., Graham v. Dep’t of Public Welfare, 403 U.S. 365 (1971) (Arizona’s denial of welfare benefits to aliens who have resided less than 15 years in the United States a violation of the Equal Protection Clause).
If the states cannot alter immigration policy with respect to Syrian refugees, can Congress do so? Yes, if done correctly, which leads us to the American Security Against Foreign Enemies Act of 2015, or the American SAFE Act.
The House adopted the SAFE Act on Nov. 19, and, lo and behold, who voted in favor of it – Rep. Louise M. Slaughter. You can read her rationale for the vote on her website and decide whether it jibes with what others are saying about the security threat and the current refugee admission process.
I have concerns about the constitutionality of the bill. It is short and to the point. It requires the FBI, in addition to the Department of Homeland Security, to conduct a “background investigation” on “each covered alien” … “before U.S. refugee admission.” After the investigation the DHS, the FBI and the director of National Intelligence must all agree to admit the “covered alien.”
And who is a “covered alien?” Any “national or resident of Iraq or Syria” or any alien applying for refugee admission who “has been present in Iraq or Syria at any time after March 1, 2011.”
The bill does not uses neutral terms, such as all persons seeking admission as refugees. Instead, it focuses on two countries – Iraq and Syria – and imposes an extra obstacle to the admission of refugees with ties to them.
Thirty years ago, the Supreme Court stated “when a statute classifies by race, alienage, or national origin, (t)hese factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. …” Consequently, “these laws are subjected to strict scrutiny.” They must be narrowly tailored “to serve a compelling state interest,” Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
So, Louise, what is the compelling state interest to justify the bill’s discrimination on the basis of national origin? The need to keep out Syrian and Iraqi refugees who may pose a threat to national security? Do you have any evidence “bad guys” have slipped into the country posing as Syrian or Iraqi refugees? As you note in a press release, we have only admitted 2,034 Syrian refugees since 2011, most of whom are children.
What is defective about the current vetting process of refugees that warrants special treatment of Syrian and Iraqi nationals and persons who were merely present in the two countries? In other words, why is not the current process, which applies to all persons seeking admission as refugees, a more narrowly drawn means to achieve the bill’s goal?
Louise may respond the protections of the Constitution do not extend to aliens living abroad. Therefore, Congress may freely discriminate among aliens applying for refugee admission on the basis of national origin.
The response is correct but overlooks one fact. Aliens do enter the country legally and then apply for refugee status. Once they are present, they are persons entitled to the equal protection of our laws.
Louise is counting on the Senate to improve the SAFE Act. Here’s hoping the Senate just kills the bill that reflects prejudice toward Syrians and Iraqis.
Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or firstname.lastname@example.org.