Mike Pence tried to do what he thought was best for the people of his state. The Indiana governor tried to prevent the resettlement of Syrian refugees because he feared they might threaten the safety of state residents.
However, the courts had other ideas. A district judge issued a preliminary injunction blocking Pence’s effort, and then a federal appeals court upheld the injunction last week.
In his court brief, Pence asserted Indiana has a “compelling interest in protecting its residents from the well‐documented threat of terrorists posing as refugees to gain entry into Western countries.”
But Judge Richard Posner, writing on behalf of a three-judge panel of the U.S. Court of Appeals for the 7th Circuit, brushed aside the argument that the state has a compelling interest in protecting its resident. The judge said Pence provided no evidence that Syrian refugees are posing as terrorists or that they have ever committed terrorist acts in the United States.
“And if Syrian refugees do pose a terrorist threat, implementation of the governor’s policy would simply increase the risk of terrorism in whatever states Syrian refugees were shunted to,” Posner wrote. “Federal law does not allow a governor to deport to other states immigrants he deems dangerous; rather he should communicate his fears to the Office of Refugee Resettlement.”
Daniel Horowitz, senior editor at Conservative Review and author of “Stolen Sovereignty: How to Stop Unelected Judges From Transforming America,” said the judge’s dismissive attitude toward Indiana’s interest is part of a growing pattern across the country.
“In order to invalidate any action taken by a state, they have to say it’s not in the state’s interest,” Horowitz told WND. “You’re seeing this across the board. You’re seeing it with photo ID, early voting, same-day registration — they say there’s no such thing. ‘There’s no such thing as voter fraud; there’s no security problems.’ And then states are basically crushed, they’re impotent.”
Horowitz echoed the late Justice Antonin Scalia, saying states would never have joined the Union if they had been told even the elected branches of the federal government, let alone the unelected judicial branch, could crush them in this way.
“Throughout the constitutional ratification process, the concern was over Congress stepping outside of its enumerated powers,” Horowitz recalled. “There was never any premonition that the executive and the judiciary would just crush the states, that the states literally cannot protect their vital interests. It makes no sense. It literally makes no sense.”
Horowitz said Posner’s ruling looks worse when juxtaposed with the federal government’s lax attitude toward sanctuary cities and states.
“This is exactly the perverse manifestation of stolen sovereignty I discuss in my book, where states are upholding national sovereignty, where they’re following federal immigration law, they’re actually punished,” he said. “So Arizona is punished for echoing federal law, but states like California could literally say, ‘We will not cooperate with federal officials,’ even concerning very violent criminal aliens, and there’s no problem, and in fact the courts side with them and the courts give them tailwinds in their ability to thwart the federal government.”
All three judges on the panel that unanimously ruled against Pence – Posner, Frank Easterbrook and Diane Sykes – were Republican appointees. Ronald Reagan appointed Posner and Easterbrook, while George W. Bush appointed Sykes. Horowitz pointed out Easterbrook and Sykes were also part of a three-judge panel that upheld a lower court’s ruling against Wisconsin’s voter ID law. The author said this proves the “legal ratchet” theory he discusses in “Stolen Sovereignty.”
“When Democrat judges get in, they just advance their agenda and move constitutional construction inexorably away from its meaning at the time our Constitution was ratified,” Horowitz said. “When Republicans come in, it’s like a ratchet. They’ll never roll it back; it’s only a question of will they keep things the same, or how much more will they advance in that direction?”
Horowitz singled out Posner as the “quintessential judicial tyrant.” He noted the Reagan appointee has a history of left-leaning and post-constitutional pronouncements, including this comment: “I’m not particularly interested in the 18th century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today.”
“He literally believes that judges no longer swear an oath to the Constitution, but to precedents set by the Supreme Court,” Horowitz said. “So he is the poster child for judicial activism, and he’s a Republican appointee, which demonstrates that the entire federal judiciary is irredeemably broken.”
Pence and the state of Indiana built their argument on the concern that terrorists may pose as Syrian refugees – something that already has happened in Europe.
Although Horowitz believes it’s a legitimate concern, he said it was not the strongest legal argument Indiana could have made. He suggested the state should have instead accused the Obama administration of breaking the law by failing to consult with state leaders before placing refugees in Indiana.
“Specifically, 8 USC 1522 of the Refugee Act of 1980 stipulates that the federal agency responsible for resettling refugees “shall consult regularly (not less often than quarterly) with State and local governments and private nonprofit voluntary agencies concerning the sponsorship process and the intended distribution of refugees among the States and localities before their placement in those States and localities.”
“So that means that no resettlement can be done in a state or given county without advance consultation with state officials,” Horowitz said. “That’s really the issue here. They have to be consulted at every stage, and that is not happening.”
But even though that law appears to favor wary states, the courts still manage to dismiss states’ concerns. Horowitz noted Alabama and Texas both sued the Obama administration for settling refugees in their states without consulting with state officials, but federal judges have dismissed the cases. In the Alabama case, the judge declared the state’s claims were too vague, and in Texas, the judge ruled the state had no authority over federal resettlements and it presented no plausible evidence that Syrian refugees posed an imminent risk.
“Everything that a state wants to do and law enforcement or taxpayers want to do, that’s speculative,” Horowitz lamented. “Their grievances are speculative or their interests are notional. But yet when refugees or illegal immigrants or criminal aliens want to sue for rights, they always find concrete standing.”
Horowitz noted with chagrin that Sheriff Joe Arpaio of Arizona was not granted standing to sue the Obama administration over two of the president’s immigration policies, DAPA and DACA, but illegal aliens have been granted standing to bring lawsuits in U.S. courts. This is in opposition to long-established case law, which held that illegal immigrants could never be granted standing because they had no right to be in the country in the first place.
“Nowhere is the imbalance in standing more evident than when it comes to immigration,” Horowitz said. “This is literally stolen sovereignty, how the people have no right to self-governance and no right to determine their own destiny without interference of foreign powers to make decisions for them and to literally transform their country.”
He further noted that resettlement contractors benefit financially from each refugee they resettle, giving them an incentive to resettle as many as possible with no regard for the safety or interests of the communities in which they place the refugees. And the contractors may sue for more taxpayer funds, or to force states to accept refugees.
“So we’re literally seeing the stolen sovereignty where you’ve got the unelected branches just working together,” Horowitz concluded. “It’s the taxpayer-funded resettlement contractors, it’s the federal bureaucrats and the federal courts all working together to steal the sovereignty of the people in the states.”
