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Carter: Prohibiting Refugees

To date, governors from at least 31 states have announced they either oppose the resettlement of Syrian refugees in general - or within their borders in particular. And while this may make for good political fodder it’s unlikely the U.S. Constitution – which they’re sworn to uphold - would countenance such state level actions.

The U.S. Supreme Court has consistently concluded that the Constitution prohibits states from enacting laws that burden a national immigration policy. Under Article VI of the Constitution the framers recognized that with respect to treaties and foreign affairs, the federal government has plenary power to supercede state laws. In this vein, the Court has held that if the rights of immigrants “could be refused solely upon the ground of race or nationality … the equal protection of the laws would be a barren form of words.”

For more than a century, the Supreme Court has confirmed this position and held that under the Constitution the federal government – not the states – has the power to decide who may enter the Country and who may not. And, once the federal government has admitted that individual he or she is free to live in any state. Furthermore, pursuant to the Equal Protection Clause of the Fourteenth Amendment, states generally may not discriminate based on race, ethnicity, religion, national origin, or alienage. Time and again, the Supreme Court has rejected state efforts to discriminate based on these factors.

When it struck down Arizona’s state immigration law, Justice Kennedy explained: “the history of the United States is in part made of the stories, talents and lasting contributions of those who crossed oceans and deserts to come here….” Within this context, any state law or executive order prohibiting the settlement of Syrian Refugees likely violates the fundamental right to equal protection under the law.

But setting aside politics – and even the Constitution - these gubernatorial pronouncements are especially ironic as this is the week when we all sit down together to celebrate Thanksgiving – the very holiday dedicated to remembering how native people accepted the Pilgrims when they rowed ashore as some of America’s first religious refugees, early in the winter of 1620.

Jared Carter teaches legal activism, legal writing and appellate advocacy at Vermont Law School. He also directs the Vermont Community Law Center, a non-profit legal services organization focused on social justice, constitutional rights and consumer protection.
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