Can governors legally block Syrian refugees from coming to their states?

Last Updated Nov 17, 2015 8:57 AM EST

Concerns about terrorists hiding among the flood of Syrian refugees in the wake of the Paris terror attacks have more than a dozen governors around the country promising to close their states to any of the refugees.

But those governors may be making promises they can't keep: several experts in immigration and constitutional law told CBS News that states are not empowered to reject immigrants granted refugee status by the United States.

"Immigration law is federal," explained Richard Primus, a constitutional law professor at the University of Michigan law school. "States are not supposed to engage in foreign relations or in diplomacy. States can do things that make themselves attractive or unattractive as destinations for immigrants....But [the state of Michigan] could not, for example, say, 'We disapprove of the government of Myanmar, and so we boycott Myanmar as Michigan.' That's the federal government's job, and when states have tired to do things like that, the courts have said, 'No way.'"

As more governors announced their intent to reject refugees, Center for American Progress Senior Fellow Ian Millhiser laid out the legal foundation for their inability to do so in a memo. Hines v. Davidowitz affirmed the federal government's primacy in issues of immigration, naturalization and deportation.

The Refugee Act of 1980 gives the president the power to admit refugees who face persecution or a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion.

A 2012 decision, Arizona v. United States, reaffirmed the federal government's authority over the states on immigration matters and specifically stated that it might be "inappropriate" to return an immigrant to a country mired in civil war.

Adam Cox, a New York University Law School professor who is an expert in immigration and constitutional law, agreed with Millhiser's analysis.

"States lack legal authority to refuse to accept refugees (or any other immigrants) that are admitted by the federal [government]," he wrote in an email.

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States rejecting refugees.

CBS News

That's not to say that states can't make it difficult for Syrian refugees to settle once they are admitted to the United States. Once refugees are on their way to the United States, the State Department works with nine nongovernmental agencies that contract with the federal government on resettlement. Together they decide where to place refugees around the country, based on factors like the availability of jobs and housing and whether there is a local community from their home country that may be helpful, explained Kathleen Newland, a senior fellow at the Migration Policy Institute.

"States do have a role in the refugee resettlement process post admission, and it would certainly be possible for them to obstruct the resettlement process," she said. States could instruct their employees not to cooperate with the resettlement program, or they could freeze state-level refugee benefits or federal refugee benefits distributed by the states.

But refugees do not have to stay in the states where they are resettled, and they are also allowed to join family members in the United States. Once immigrants have been legally admitted to the U.S., they are allowed to travel anywhere in the country they wish. That could create a problem in states like Michigan, which has the second-largest Arab-American population in the country, according to the Arab American Institute.

Gov. Rick Snyder said Sunday that his state was postponing efforts to accept refugees until there was further review of security by the federal government.

President Obama said in September that the U.S. should prepare to admit at least 10,000 Syrian refugees in the next fiscal year, a significant increase from the 1,500 it was on track to accept in the fiscal year ending Sept. 30.

In a press conference Monday, Mr. Obama reiterated his commitment to take in Syrian refugees despite the Paris attacks. The president said that refugees would be accepted "only after subjecting them to rigorous screening and security checks," and he also said that many of them were also fleeing terrorism.

"Slamming the door in their faces would be a betrayal of our values," he said.

  • Rebecca Kaplan

    Rebecca Kaplan is a political reporter for CBSNews.com.