Wall Street Journal
By Jacob Gershman
September 15, 2016
Gov. Mike Pence’s directive restricting Syrian refugee resettlement in Indiana came under withering scrutiny Wednesday from a federal appeals court weighing its constitutionality.
Donald Trump’s running-mate last year directed Indiana agencies to block refugee resettlement agencies from using federal grant money to provide social services to Syrian refugees resettling in the state.
Indiana is among a number of conservative states that have tried to block or delay the arrival of refugees fleeing the war-torn Arab country. State leaders like Mr. Pence say they have legitimate terrorism concerns. But their opposition has triggered litigation and come under harsh judicial review. Law Blog previously reported about how Texas’s effort to stop the resettlement of Syrians was slapped down by a federal judge.
In February, a federal district judge granted an injunction sought by Exodus Refugee Immigration Inc. that halted the Indiana governor’s order. The judge said preventing the refugee groups from access federal dollars “clearly discriminates against Syrian refugees based on their national origin.” The state then appealed to the Seventh U.S. Circuit Court of Appeals in Chicago.
Lawyers representing Indiana characterized Mr. Pence’s directive as a “limited and temporary action” in response to security concerns.
“This case is about Governor Pence’s authority to fulfill his core responsibility to protect the safety of Indiana residents,” lawyers representing Indiana told judges in a brief. “Federal officials acknowledge terrorists are trying to infiltrate Western nations.”
At Wednesday’s arguments, Indiana Solicitor Gen. Thomas M. Fisher said the discrimination charge was unfair because refugees fleeing Syria pose an acute security risk and haven’t been properly vetted.
It became evident that Mr. Fisher was waging a steeply uphill fight, according to a dispatch from the Associated Press:
The judges, in sharp exchanges at times, were skeptical. When Fisher interrupted a judge, another on the bench issued a rebuke. Later, when Judge Richard Posner launched into queries about how Indiana had determined Syrians were more dangerous than other refugees, he appeared unsatisfied with Fisher’s response.
“Honestly, you are so out of it,” Posner said.
Questions directed at ACLU attorney Kenneth Falk were less intense and largely focused on constitutional arguments.
Kenneth J. Falk, a civil-rights lawyer and lead counsel for Exodus, argues that Indiana’s directive is problematic because it’s not just screening potentially dangerous people but is “designed to deter all Syrian refugees.”
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