The Governors Do Well To Take a Stand ... Yet They Lack Power to Deny Refugees Admission to Their States

When the States created the federal government via the ratification of the United States Constitution, among the powers donated to the Congress was power to enforce the "Law of Nations."

The "Law of Nations" is a legal term of art. It refers to the customary body of laws governing relations between nations. Within the scope of the Law of Nations is the question of migration from and to other nations. Thus, whatever were the powers of the States prior to the ratification of the Constitution, with the ratification Congress received that power from the States.

So, it seems quite likely, for this reason, and no other, that the federal government -- Congress specifically -- decides the rules for immigration to the United States. Enforcement of such laws as Congress enacts regarding immigration is the duty of the Executive Branch. 

This conclusion is supported in the outcome of longstanding Supreme Court cases, although the reasoning of those cases has not looked to the Law of Nations power exclusively, and, unfortunately, has sometimes taken the view that regulating immigration is a power "inherent to our national sovereignty." That troubling formulation fails to accord respect to the role of the States in creating the federal government, and inquiring whether, and how, their original power over migration was transmitted to the federal government.

While the federal government has the power to regulate migration into the United States under the Law of Nations Enforcement Clause, the question of how to manage the current press to admit refugees from the Syrian crisis is not answered in the Constitution. Rather, the specifics of how to treat refugees is governed by federal statutes.

Under the 1980 Refugee Act, the Congress requires consultation with the States as to placement of refugees, but not approval. Settlement of refugees, however, does not mean that the States are obliged to provide material support and benefits to those refugees; in fact, federal funding is the carrot for the stick of placement. So, this administration should be consulting with the States, and this administration should give consideration to whether unwilling states are the best placement for refugees, if being so placed means not having access to federally funded support programs.

Long and short of it, the Governors are right to take a stand, but wrong to think that the Constitution grants them the power to enforce that stand to the complete exclusion of refugees into their States.

One further matter.

Because refugees are lawfully admitted to the United States, they enjoy the equal protection of the laws. That equal protection is guaranteed against federal violation by the implicit requirement of equal protection in the Due Process Clause of the Fifth Amendment, and by the express requirement of the Fourteenth Amendment's Equal Protection Clause.

We now have two decisions from the Supreme Court touching on issues related to the highly contentious debate over the legalization of same sex marriage.

In Hollingsworth v. Perry, the Supreme Court concluded that private parties defending California's Proposition 8 on appeal from a federal trial court decision striking down Prop 8 lacked the necessary special and peculiar injury and interest to confer "standing" on them.  In the absence of "standing to sue," their appeal was found to be without procedural merit.

The Hollingsworth decision vacates a decision of the Ninth Circuit.  Moreover, rather than leaving the Ninth Circuit free to reconsider and reaffirm its prior holding, the Court ordered:  "The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction."  This portion of the decision might get lost in the fog.  This DEPRIVES the Ninth Circuit of the opportunity to impose on ALL THE STATES within the NINTH CIRCUIT's JURISDICTION the reasoning it used to affirm the trial court's decision striking Prop 8.

So, in California, where the majority of voters amended their Constitution to prohibit same sex marriage, in the federal judicial district in which the trial was held, Prop 8 is null and void.  But, at least for now, other States are not bound by a federal appellate decision from the Ninth Circuit finding a fundamental right to marriage that is violated when a State limits marriage to opposite sex couples.

In the second case, United States v. Windsor, the Supreme Court struck down ONE PORTION of the federal Defense of Marriage Act (often referred to as DOMA).  Justice Kennedy explains succinctly the two operative provisions of DOMA:

"DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to recognize same-sexmarriages performed under the laws of other States. See 28 U. S. C. §1738C.  Section 3 is at issue here. It amends the Dictionary Actin Title 1, §7, of the United States Code to provide a federal definition of 'marriage' and 'spouse.'"

Section 2 of DOMA reflects a judgment made by Congress in the 1990's that each State should decide for itself how to treat the decisions regarding regulation of marriage in other States.  It is a section having to do with how States accord "full faith and credit" to the legal acts of other States.  The Constitution speaks to this question in Article IV, section 1, where it states:

"Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

When Congress enacted Section 2 of DOMA, it concluded that it would allow each State to determine under its own legal construct, how to treat marriages initiated, regulated and terminated in other States.  That section of DOMA is NOT INVOLVED in today's decision.  For today, at least, Section 2 of DOMA remains valid law.  This means each State continues to enjoy a power of regulating the institution of marriage free from assertions made that, by recognizing or denying recognition of a same sex marriage in another State, such a State has denied full faith and credit to a Sister State's public acts, records and judicial proceedings.


What was at issue in the Windsor case was the portion of DOMA that defined marriage for federal law purposes as being limited to opposite sex couples.  The Court struck down that provision of DOMA.