Tuesday, March 14, 2017

What's Wrong With Tennessee Legislators' Anti-Refugee Lawsuit?

by Michael Dorf

If you answered the question that titles this post "it's immoral," you're right, but that's not the answer I am looking for. I want to know why the lawsuit will fail as a legal matter. After explaining what the case is about, I'll provide the answer.

On Monday, attorneys for the Thomas More Law Center filed a lawsuit on behalf of the Tennessee General Assembly and various Tennessee state legislators against various federal government officials, alleging that the federal refugee resettlement program (which is currently on hold) is unconstitutional.

The suit purports to represent the state of Tennessee, but there is at least initially a question of standing. The complaint cites a state resolution directing the state Attorney General to file the suit and purporting to give itself the power to hire outside counsel to do so in the event that he does not. The complaint also cites the AG's letter declining the invitation but delegating the power to bring the suit back to the legislature, which hired Thomas More.

That settles the question of standing, right? Probably. In Karcher v. May, the SCOTUS held that state legislative leaders lacked standing to represent the state (of New Jersey in that case) after they lost their offices but that they had standing to do so prior to that, because New Jersey law authorized their representation of the state. I say "probably" rather than "definitely," however, because more recently, in Hollingsworth v. Perry, the Court rejected the California Supreme Court's determination that the sponsors of a California ballot initiative had standing to defend the initiative when the state AG would not. The Court distinguished Karcher by noting that legislators are different from private parties, but it also indicated that in evaluating the standing of any party purporting to represent the state in its sovereign capacity, federal courts should analyze state law. Thus, it is at least open to the federal government--assuming the Trump administration defends against the lawsuit at all!--to argue that Tennessee law did not permit the legislature and/or the state AG to authorize the lawsuit.

Assuming that standing is not an issue, what about the merits? The state plaintiffs make two closely related claims.

First, they argue that requiring the state to spend Medicaid funds on refugees or else lose all its Medicaid funding--as the state is required by the combination of two federal statutory provisions (here and here)--amounts to a coercive exercise of the Spending Power by Congress, because of the amount of money at stake. This is at least superficially a plausible reading of the part of NFIB v. Sebelius that invalidated Congress's effort to condition all Medicaid funds on states' acceptance of the Affordable Care Act's expansion of Medicaid, but only superficially. Crucial to that ruling was the tying of "new" conditions to "old" expenditures, whereas the obligation to include certain lawful non-citizen residents in Medicaid is longstanding. If the state plaintiffs' theory were accepted, then one could point to any longstanding requirement of Medicaid (or any other large federally funded joint state-federal program) and declare it disproportionate to the total funds. Accordingly, the state plaintiffs' argument that the obligation to spend Medicaid money on non-citizens is coercive should fail.

The state plaintiffs' second argument is that as currently administered, the federal program for resettling refugees commandeers state participation in violation of New York v. United States and Printz v. United States. But the state plaintiffs' argument to this effect is practically frivolous. The complaint notes that in compliance with a federal regulation, effective in 2008, Tennessee withdrew its voluntary cooperation from the resettlement program. And yet, the complaint darkly alleges:
Despite Tennessee notifying the federal government that it declined to further implement, fund, or participate in the federal refugee resettlement program, the federal government—through various regulations and statutes—coerced the state to continue funding the refugee resettlement program by threatening the state with the loss of federal Medicaid funding. Furthermore, in direct violation of constitutional principles of state sovereignty, the federal government bypassed the decision of Tennessee’s elected representatives and mobilized a private agency to assume control and direction of the refugee resettlement program in Tennessee. As a result, the federal government nullified the decision of the people of Tennessee to withdraw from an ostensibly voluntary federal program and thereby commandeered state funds to support a federal initiative.
The claim that the threatened loss of federal Medicaid funding amounts to commandeering is completely parasitic on the contention that the Medicaid funding requirement violates NFIB v. Sebelius, which, as noted above, it does not. As both New York and Printz make clear, if the funding conditions are a valid conditional exercise of the Spending Clause (as they are here), then they are not commandeering.

The quoted paragraph contains a further allegation: that somehow by designating a private agency (Catholic Charities) to "assume control and direction of the refugee resettlement program in Tennessee," the federal government "nullified" Tennessee's decision to cease participation in the program. Yet the very reg that Tennessee invoked to end its voluntary participation in the refugee resettlement program also expressly authorized the federal government to designate "a replacement designee or designees to administer the provision of assistance and services" to refugees. That probably explains why for nearly a decade after Tennessee ceased voluntary participation in refugee resettlement, it did not occur to anyone in the state to argue that the federal government was somehow infringing the state's sovereignty by running the program through an NGO. It also probably explains why the state AG opted not to file this lawsuit.

At bottom, the state plaintiffs' claim comes down to the contention that the federal government's and Catholic Charities' resettlement of refugees in Tennessee imposes indirect collateral costs on the state. That may be a legitimate gripe, but it is not a constitutional or other legal gripe. Federal laws and programs routinely have adverse collateral consequences for states (and for that matter, private parties). Federal creation of a museum may generate traffic when tourists come to that museum, which in turn may create costs for states when the increased traffic leads to a need for more highway patrols. A federal regulation of industry may raise the cost of doing business for some firm or may lead some firm to shift its production from one state to another, in either case leaving a state with less revenue. The Unfunded Mandates Reform Act of 1995 imposes some procedural obligations on the federal government before imposing unfunded mandates on the states, but notably, the state plaintiffs' complaint does not invoke the statute, and for good reason, because it has not been violated.

Accordingly, the complaint should be dismissed on a 12(b)(6) motion for failure to state a claim upon which relief can be granted. The only real question is whether the Trump/Sessions Justice Department will file such a motion or whether, instead, it will accede to the demands of this weak lawsuit. Section 6(d) of Trump's Muslim Ban 2.0 announces the administration's policy of granting state and local governments a greater "role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees." It is possible that the Trump administration will use the Tennessee lawsuit as an excuse for halting refugee resettlement in states that are not voluntarily participating in resettlement. But if it does so, no one should have any illusions that it was compelled to do so by the law.

5 comments:

Joe said...
This comment has been removed by the author.
Joe said...

I understand this is a legal blog (thus its name) but it is notable to me that the "Thomas More Law Center" is behind this thing. The aim of this organization is to -- front and center: "Preserve America’s Judeo-Christian heritage."

https://www.thomasmore.org/

What that means is unclear but care of refugees to me, fwiw (small as that might be), seems to trump (will this word ever be used without a certain tone any more?) their concern for state power here.

Anyway, I appreciate your arguments but once upon a time it seemed a long-shot that the ACA's Medicaid requirement would be held unconstitutional. Even some sympathetic of the argument said as much. This doesn't make anything you said wrong.

It just suggests a chill wind blows.

David Katz said...

The Thomas More Law Center's wheelhouse seems to be giving awful litigants terrible legal advice in losing litigations. Back in the mid 00's the TMLC represented the Dover Area School District in their ill fated attempt to include intelligent design in their high school biology curriculum. Kitzmiller v. Dover Area School District. The litigation was settled after the school board members behind the policy were driven out of office. The judge rebuked some those behind the intelligent design scheme for lying under oath.

Shag from Brookline said...

Perhaps "intelligent design" fosters lying under oath. Query: Does The Donald believe in "intelligent design"? If so, QED?

Joe said...

Interesting case. Opinion written by a W. appointee.

Peter Irons wrote a book on various religious legal disputes and had a chapter on it. Think others covered it in depth too.