You have asked for my Official Opinion regarding Executive Order 11.16.15.02, which relates to the resettlement of Syrian refugees in Georgia. In your request, you note that the executive order “prohibits state agencies from facilitating the resettlement of Syrian refugees in Georgia pending a thorough review of the federal resettlement program.” You also request that I “examine the content of the Executive Order as it relates to governance of the State of Georgia.”
I note first that the executive order responds to serious concerns about recent terrorist attacks linked to the ongoing conflict in Syria, concerns that legitimately extend to the current federal process for reviewing and accepting refugees from Syria into the United States and, more specifically, into the State of Georgia. I share those concerns and similarly hope that the federal government will take all necessary and appropriate steps to assure that all refugees, regardless of country of origin, be carefully scrutinized to ensure the safety of our citizens.
I also recognize your responsibility as Governor to do everything within your power to protect the health and public welfare of all Georgians, particularly to prevent violence and maintain order. See O.C.G.A. §§ 45-12-29 to 45-12-34. Given recent actions both at home and abroad, it is vital for a governor to request, as you have done, additional information from the federal government related to the process that it uses in both the vetting of potential refugees and their placement in a state. The federal government, in turn, should provide the information to you and your counterparts in other States. Indeed, the federal agencies most directly involved with refugee resettlement, the Office of Refugee Resettlement at the Department of Health and Human Services and the State Department’s Bureau of Population, Refugees, and Migration, are required by law to consult with state and local governments about the intended distribution of refugees among the states and localities before the placement of refugees in those states and localities. See 8 U.S.C. § 1522(a)(2)(A).
The executive order essentially orders three things: (1) that all state agencies “halt any involvement in accepting refugees from Syria for resettlement in the State of Georgia until such time as the United States Department of State has re-examined the security concerns and established new processes for accepting refugees from Syria; (2) that “no agency of the State of Georgia shall accept any refugees from Syria for resettlement in this State until such time as Congress has approved of the new processes for accepting refugees from Syria”; and (3) that “the Georgia Emergency Management Agency (GEMA) shall confirm that any refugees from Syria who have been resettled in this State do not pose a public safety risk.” With respect to the latter, the executive order also provides that GEMA shall prepare a report to the Governor “as soon as practicable.”
Notwithstanding the significant concerns addressed in the executive order, the decision to place refugees in a particular state is a federal decision reached as a result of federal law, the Immigration and Nationality Act, as amended by the Refugee Act of 1980. See 8 U.S.C.
§§ 1157, 1521-24. The President of the United States determines the total number of refugees that will be permitted into the country each fiscal year. 8 U.S.C. §1157(a)(2) and (3). The State Department’s Bureau of Population, Refugees, and Migration assigns admitted refugees to one of nine national resettlement agencies, and those agencies in turn decide specifically where those refugees will be placed, subject to final approval from the Bureau. Despite the apparent lack of confidence in the current federal refugee resettlement process among a majority of this country’s governors – not to mention a majority of the American people if recent polls are accurate – this is clearly a problem that requires a federal solution, one that the President or, if he continues to decline, Congress should address.
As a matter of federal law, and particularly constitutional Supremacy Clause principles of preemption, the states do not have any authority to unilaterally interfere in congressionally authorized federal immigration programs. See, e.g.,Arizona v. United States, 567 U.S. __, __, 132 S. Ct. 2492, 2498 (2012) (“The federal power to determine immigration policy is well settled.”) See also Op. Tenn. Att’y Gen. 15-77 (Nov. 30, 2015) (it would be a violation of the Supremacy Clause for either the legislative or executive branch of the State of Tennessee to refuse to accept for resettlement individuals whom the federal government has processed and admitted to the United States as refugees).
In addition to the federal rules of preemption that limit state action with respect to refugees resettled in Georgia, the State has entered into a formal agreement with the federal government to operate the refugee resettlement program, which includes the provision of myriad benefits that are 100 percent federally funded. The Georgia Refugee Resettlement Program operates pursuant to a “state plan” submitted to and approved by the federal Office of Refugee Resettlement. The contents of that plan are governed by extensive federal regulations. See 45 C.F.R. §400.5. In particular, the plan must provide that the state will “(1) Comply with the provisions of title IV, Chapter 2, of the Act and official issuances of the Director; (2) Meet the requirements in this part; (3) Comply with all other applicable Federal statutes and regulations in effect during the time that it is receiving grant funding; and (4) Amend the plan as needed to comply with the standards, goals, and priorities established by the Director.” 45 C.F.R. §400.5(i).
The most recent Georgia Department of Human Services Refugee Resettlement State Plan (FY2015) was approved by the federal office in January of 2015. That plan, among other things, provides the following “assurances” in section I(C):
c. The Georgia DHS assures the Office of Refugee Resettlement (ORR) that the goals and objectives of the Department’s Refugee Resettlement Program comply with all other applicable Federal Statutes in effect during the time that it is receiving grant funding. (§400.5(i)(3)
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e. The State assures that assistance and services funded under the Plan will be provided to refugees without regard to race, religion, nationality, sex or political opinion. (§400.5(g))
Refugee Resettlement State Plan (FY2015) at 3. I have reviewed the pending plan for FY2016 and note that it makes the same assurances.
If the State no longer wants to function as the federally-designated refugee resettlement program, it may cease participation after giving 120 days advance notice to the Director of the Office of Refugee Resettlement. See 45 C.F.R. §400.301(a). Such withdrawal, however, would not relieve the State of providing benefits to refugees as required under federal law.
Essentially, and to the extent it is read most broadly, the scope of the executive order is limited by two things: (1) federal law and the Supremacy Clause and (2) the terms of its voluntary agreement with the federal government to participate in, and accept federal funding relating to, the Refugee Resettlement Program. I am unaware of any law or agreement that would permit a state to carve out refugees from particular countries from participation in the refugee resettlement program, no matter how well-intended or justified the desire to carve out such refugees might be. Accordingly, it is my official opinion that both federal law and the State’s agreement to act as the state refugee resettlement coordinator prevent the State from denying federally-funded benefits to Syrian refugees lawfully admitted into the United States.
SAMUEL S. OLENS