Alaska & The Inauguration: Resettlement at Risk
Trump's Inaugural Address, Why the President has So Much Power, and What it Means for the Great State of Alaska.
“Today I will sign a series of historic executive orders. With these actions we will begin the complete restoration of America and the revolution of common sense. It’s all about common sense.
First, I will declare a national emergency at our Southern Border. All illegal entry will immediately be halted and we will begin the process of retuning millions and millions of criminal aliens back to the places from which they came. We will reinstate my “Remain in Mexico” policy. I will end the practice of catch and release. And I will send troops to the Souther Border to repel the disastrous invasion of our Country.
Under the orders I sign today, we will also be designating the cartels as foreign terrorist organizations. And by invoking the Alien Enemies Act of 1798, I will direct our Government to use the full and immense power of federal and state law enforcement to eliminate the presence of all foreign gangs and criminal networks bringing devastating crime to U.S. soil, including our cities and inner-cities.
As Commander in Chief, I have no higher responsibility than to defend our Country from threats and invasions and that is exactly what I am going to do. We will do it at a level that nobody has ever seen before.”
President Trump’s Second Inaugural Address
On January 27th, 2017, President Trump signed Executive Order 13769: Protecting the Nation From Foreign Terrorist Entry Into the United States. In this Executive Order, he claimed “Numerous foreign-born individuals [that] have been convicted or implicated in terrorism-related crimes” have entered the United States through the U.S. Refugee Admissions Program. This is untrue: refugees are some of the most vetted persons to enter the United States—and have often risked their lives for U.S. national security.
He also “realigned” the U.S. Refugee Program, suspending admissions for 120 days, increasing delays in refugee processing through prejudicial security procedures, discriminating against refugees without religious persecution claims, denying Syrian refugees protection, requiring duplicative state and local consent for resettlement, and slashing refugee admissions by over half.
We expect a similar—if not more damaging—executive order will be issued over the next several hours.
We’ll be covering those forthcoming executive orders next week, but this week we are going to talk about how it all started: Why does the President have so much power when it comes to refugee admissions—and what can we do about it?
The short answer: tell your members of Congress to support The GRACE Act. For the long answer, read below.
The President Decides
Every year, the President sets the annual refugee admissions goal via a presidential declaration known as “The Presidential Determination on Refugee Admissions.”
For example, last year, President Biden issued a Presidential Determination setting the refugee admissions goal at 125,000 refugees. During his last term, President Trump successively issued America’s lowest refugee admissions goals in history.
Seven days after the inauguration, President Trump slashed refugee admissions by over 50%: from 110,000 to 50,000. The refugee admissions goals that would follow would only set further unprecedented lows: 45,000 for 2018, 30,000 for 2019, 18,000 for 2020, and a mere 15,000 for 2021.
But Why?
Why does the President have so much power when it comes to refugee resettlement?
The answer starts with The Constitution.
Article II, Section Two establishes the President’s authority to “make treaties” and “appoint Ambassadors” with the advice and consent of the Senate. Article II, Section Three similarly establishes the President’s authority to “receive Ambassadors.” Some have interpreted these clauses as granting the President primary authority over foreign affairs.
This was certainly the opinion of the Honorable Griffin B. Bell, Attorney General of the United States, at the time The Refugee Act of 1980 was passed.
Prior to The Refugee Act, refugees were primarily welcomed to the United States through the parole authority—which was administered by the Attorney General, much like parole is administered by the Department of Homeland Security today.
Refugee Act Redistributes
A leader in drafting and passing the Act, Attorney General Bell opened a series of hearings on The Refugee Act in the House Judiciary Subcommittee on Immigration, Refugees, and International Law on May 3rd 1979. He explains that The Refugee Act was drafted to re-distribute authority over the U.S.’s refugee relief efforts, from the Attorney General to a division of power between the President and Congress.
“Under the current law the Attorney General has the sole authority under the Immigration and Nationality Act for the admission of refugees, either through the conditional entry provisions or the exercise of the parole power…The bill transfers the responsibility for refugee policy decisions to the President in consultation with the Congress.”
He argues that “The President is empowered under the Constitution to conduct the foreign policy of the country,” and that “these decisions are of such importance to the United States that they should be made only at the highest level.”
A Sidebar on Jurisdiction: If the Refugee Act was drafted, in part, to affirm the President’s primacy over foreign affairs, why are refugee issues the purview of the Judiciary Committees? The short answer is: they aren’t—not necessarily.
Congressional jurisdiction over the U.S. Refuge Admissions Program was hotly debated in late 1970s, even bringing discussions of The Refugee Act—and refugee admissions—to a complete halt. Today’s assignment of the Refugee Program to the Judiciary Committees as opposed to the Foreign Affairs Committees is a result of a territorial battle for a political win in the 1970s: nothing more, nothing less.
Bell also notes that the President is better positioned than the Attorney General to coordinate between federal agencies, like the State Department and “HEW” (now HHS, or more specifically, the Office of Refugee Resettlement).
Due in large part to Bell’s calls for reform, The Refugee Act of 1980 codified the Presidential Determination process by which the President sets a new refugee admissions goal each year—shifting responsibility for refugee policy outside of his purview and into President Carter’s.
What About Congress?
Attorney General Bell—and the legislators that passed The Refugee Act—also wanted to ensure a balance of power between the President and Congress when creating the Refugee Program.
“We must also make certain that the Congress has a proper role in formulating and carrying out our refugee policy. Up to this time, the refugee admissions policy has been exclusively the result of executive branch fiat, and the Congress has been limited to a consultative role. Any new legislation should clearly define what part Congress will play in refugee decisionmaking, and that role should not be a pro forma one.
This is why The Refugee Act requires that the President hold an “appropriate consultation” with Congress prior to issuance of the Presidential Determination on Refugee Admissions. The President must send a Cabinet-level representative to discuss the proposed refugee admissions goal with the House and Senate Judiciary Committees at least two weeks before the Determination is issued.
By law, these consultations must ”review the refugee situation or emergency refugee situation,” “project the extent of possible participation of the United States therein,” and “discuss the reasons for believing that the proposed admission of refugees is justified by humanitarian concerns or grave humanitarian concerns or is otherwise in the national interest.”
But wait…didn’t Attorney General Bell say that up until the Refugee Act “Congress has been limited to a consultative role?” And that their new role “should not be a pro forma one?”
Members of Congress asked him that very same question during the Refugee Act’s first hearing in the House. He responded by characterizing the requirement for Congressional consultations under the Refugee Act as a “report-and-wait” provision.
Report-and-Wait
Bell explains:
“I would treat the consultation process as a report-and-wait provision. Report-and-wait provisions are prone to the law of legislative veto.
The executive department and the President, by consulting, reports to the Congress what he wants to do and gives it a certain period of time within which not only to consult but to act, if it wishes to act. You might say we don’t agree with that; we want to block that.”
The Refugee Act was drafted with the understanding that legislative action can—and should—check executive overreach. When the President—repeatedly, consistently, and in bad faith—acts outside of the intent of the law, the law calls for Congress to legislatively veto those actions.
President Trump’s actions to dismantle the Refugee Program are evidence of gross executive overreach: Congress intended that the Refugee Program continue to exist as long as the Act remained in effect.
Attempts to destroy the U.S. Refugee Program violate Congressional intent, usurp Congressional authority, and upset the balance of power established by the Refugee Act of 1980.
It’s Time for Congress to Reclaim their Role in Refugee Admissions.
Just look at Alaska.
States—like Alaska—will face the consequences of Congressional abdication.
A primary function of the Refugee Act was to create predictability in refugee resettlement to support the work of states, like Alaska. A 1979 Government Accountability Office report on the Refugee Act eerily reflects the risks facing resettlement today:
“Funding uncertainties and the consequent “starting and stopping” of programs have meant that in some states, experienced staff were lost and never replaced, and some social services like employment counseling and placement were never resumed.”
Over the past four years, Alaska’s resettlement program has grown dramatically. The State Refugee Coordinator reported, “We went from one refugee health screening clinic to five refugee health screening clinics, you know. We went from one school district to three school districts.” Just last year, federal funding for resettlement in Alaska tripled.
However, the work of Alaska’s clinicians, teachers, and caseworkers—as well as the lives of Alaska’s refugees—are at risk. Just as the GAO described, executive volatility places those programs under extreme financial and operational strain.
Last year, Alaska resettled 155 refugees. During the last year of the Trump Administration, Alaska resettled only 16—almost a ten-fold decrease.
When resettlement numbers drop dramatically, so does resettlement funding. Local resettlement agencies are forced to lay off staff, close programs, or shut down altogether—and Alaska can’t afford to lose a single program. There is only one resettlement agency in The Last Frontier: Catholic Social Services in Anchorage.
Alaska & Parole
Additionally, Trump has forced a historical reversion—a return to the start and stop programs of the past that the Refugee Act was drafted to replace: parole programs.
Currently, many Ukrainian parolees in Alaska face uncertainty about their ability to remain in the United States. Haitian parolees also face similar ambiguities. Parole does not offer refugees a pathway to permanency; the Refugee Program was designed to do just that.
While the parole program plays a critical role in providing humanitarian protection, Congress created the Refugee Program to ensure that those welcomed to the U.S.—even during emergencies—could remain in the U.S. permanently.
Bell continues:
“The provisions of the draft bill governing adjustment of status to lawful permanent resident will also have the salutary effect of replacing the present piecemeal approach to adjusting the status of refugees brought in under the Attorney General’s parole authority. Generally, refugee parolees require special legislation from Congress in order to adjust their status to that of a lawful permanent resident.”
When the President dramatically cuts refugee admissions, resettlement offices close and the Refugee Program cannot respond to emergencies. Parole becomes the de-facto program for responding to urgent displacement.
Those admitted via parole must rely on repeated acts of Congress—which often meter access to citizenship by nationality—to remain in the U.S. Thus far, Congress has proven unwilling to pass “adjustment acts” and hundreds of thousands of parolees remain in legal limbo even as the threat of mass deportations looms ever larger.
Parolees are particularly vulnerable, as their permission to remain in the United States can be terminated “on notice”—effectively via mail—by even lower-level DHS officials.
Absent Congressional intervention, executive abuse of the U.S. Refugee Admissions Program will continue unchecked.
Refugees—and the states they live in—will pay the consequences.
So What Can We Do?
Congress can re-establish its authority over resettlement by passing The Guaranteed Refugee Admissions Ceiling Enhancement (GRACE) Act, which codifies a resettlement floor—a minimum number of refugees that must be admitted to the U.S. each year, no matter who is in the Oval Office.
This is closer to Congressional intent than you might think: For the first three years of the Refugee Program—1980, 1981, and 1982—Congress enshrined a maximum refugee ceiling of 50,000 refugees per year. While this was written as a ceiling in statute, it was interpreted as a floor—”a minimum annualized” “normal flow”—by Congressional contemporaries intent on meeting the newly-passed refugee goal.
Tell your representatives to restore the role of Congress in resettlement by passing The GRACE Act. Together, we can Save Resettlement.
Next week: Arizona & The Executive Orders. In the meantime, hang in there.
