Exodus Refugee Immigration v. Pence

I know there have been lots of posts and news articles about Exodus Refugee’s victory in court the other day, but I just wanted to make sure I noted the decision, and placed it into context.

On November 16, 2015, only 3 days after the coordinated terrorist attacks on Paris, Pence issued the following statement:

“In the wake of the horrific attacks in Paris, effective immediately, I am directing all state agencies to suspend the resettlement of additional Syrian refugees in the state of Indiana pending assurances from the federal government that proper security measures have been achieved. Indiana has a long tradition of opening our arms and homes to refugees from around the world but, as governor, my first responsibility is to ensure the safety and security of all Hoosiers. Unless and until the state of Indiana receives assurances that proper security measures are in place, this policy will remain in full force and effect.”

The opening line of the press release specifically ties Pence’s statement to rumors about the Paris attacks: “Following reports that a Syrian refugee was among the perpetrators of the terrorists attacks that took place in Paris on Friday…” But by November 15, news agencies were already questioning the early reports about the involvement of refugees in the attacks. By November 17, AFP had reported that the Syrian passport found near one attack scene was fake, and major American news outlets published similar reports. Subsequent investigations found that none of the attackers were refugees, and that all of the attackers appear to have been EU citizens.

The revelation of these facts did not deter Pence or his administration. In fact, during the Vice Presidential debate on October 4, 2016, Pence continued to claim – contrary to all of the available evidence – that “two Syrian refugees were involved in the attack of Paris.” Politico’s fact-checkers noted this was false during the debate, and others did as well. (Politifact missed this in their fact checking.)

Of course, Indiana doesn’t actually have the power or authority to “suspend the resettlement” of refugees. The state finally conceded that, and clarified that they were just refusing to reimburse agencies for funds spent resettling refugees from Syria.

On February 29, 2016, US District Court Judge Tonya Walton Pratt granted Exodus Refugee an injunction, preventing the state from enforcing Pence’s planned restrictions.

Although the State says it has a compelling reason for doing so—the safety of Indiana residents— the withholding of federal grant funds from Exodus that it would use to provide social services to Syrian refugees in no way furthers the State’s asserted interest in the safety of Indiana residents.

Her opinion contains lots of discussion of whether Exodus has standing, and then tries to parse the state’s linguistic sophistry on the differences between “nationality” and “national origin” and “country of origin.” And while she assumes for the sake of argument that the state has a compelling interest, Judge Pratt is skeptical of Indiana’s claims:

The Court notes that it doubtful that the State has carried its burden to “specifically identify an ‘actual problem’ in need of solving.” …For the most part, the States’ evidence is highly generalized and speculative.

But even given the benefit of the doubt, she finds, “The withholding of funds from Exodus that are meant to provide social services to Syrian refugees in no way directly, or even indirectly, promotes the safety of Indiana citizens.” Not only did the state’s actions fail to meet the “narrowly-tailored” test under strict scrutiny, Judge Pratt also indicates that the state couldn’t even survive a less-stringent rational-basis scrutiny.

And finally, Judge Pratt noted:

It is beyond reasonable argument to contend that a policy that purportedly deters four year olds from resettling in Indiana is narrowly tailored to serve the State’s asserted interest in public safety.

On March 29, 2016, Judge Pratt denied Indiana’s request for a stay of the injunction pending appeal.

On September 14, 2016, Indiana Solicitor General Thomas Fisher endured a round of incredulous questioning from Judge Posner and Judge Easterbrook at the Seventh Circuit Court of Appeals:

Easterbrook sounded unimpressed. “When a state makes an argument that’s saying, ‘we’re differentiating based on whether someone is from Syria, but that has nothing to do with national origin,’ all it produces is a broad smile,” he told Fisher.

On October 3, 2016, Judge Posner issued the opinion of the court. Given the tenor of the questioning during oral argument, and that Posner wrote the opinion, it unsurprisingly contains several legal zingers:

The governor of Indiana believes, though without evidence, that some of these persons were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States in order to commit terrorist acts here. No evidence of this belief has been presented, however; it is nightmare speculation.

But the brief provides no evidence that Syrian terrorists are posing as refugees or that Syrian refugees have ever committed acts of terrorism in the United States… And if Syrian refugees do pose a terrorist threat, implementation of the governor’s policy would simply increase the risk of terrorism in whatever states Syrian refugees were shunted to.

He argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana. But that’s the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.

I’ll just note here that the Indiana Constitution of 1851 did, in fact, forbid black people from settling in the state of Indiana. Article 13, Section 1 reads, in its entirety: “No negro or mulatto shall come into or settle in the State, after the adoption of this Constitution.” (At least Posner seems to give the state credit that if we were to bring it back, Indiana would probably try to use the weaselly Southern Strategy language of “fear of crime.”)

It remains to be seen if the case will continue. The state could ask for a full re-hearing from the Seventh Circuit, or appeal to the Supreme Court. But Republican gubernatorial candidate Eric Holcomb indicated during the latest debate that he would abide by the court’s ruling.

As a coda, this morning Pence appeared on both MSNBC and CNN to dissemble about Donald Trump’s proposed ban on all Muslim immigrants. Despite Trump’s numerous statements about the ban, Pence claimed it only applied to certain Muslims: “We’re talking about areas of the world, territories and specifically countries…” So he’s basically repurposing the same argument from his Indiana ban for Trump’s nationwide ban.

Further reading: