A lawyer who was Michigan’s state solicitor general and chairman of the American Bar Association’s Council of Appellate Lawyers has been tapped to argue Tennessee’s effort to leave the federal refugee resettlement program.
The case is before a panel of judges of the 6th U.S. Circuit Court of Appeals.
The appointment of lawyer John Bursch was announced by the Thomas More Law Center, which has been handling Tennessee’s case.
Richard Thompson, TMLC president, said Bursch’s “integrity, outstanding litigation skills, and impressive record on appeals prompted me to ask him to join our fight.”
“I can’t think of anyone more qualified to represent Tennessee and the constitutional principles involved in this case,” he said.
A hearing is scheduled March 19.
TMLC was retained by the Tennessee General Assembly in 2017 to file a first-of-its-kind Tenth Amendment lawsuit that challenges the constitutionality of the federal refugee resettlement program.
The complaint contends the federal government violated state sovereignty by forcing Tennessee to continue paying for the program after it exercised its right not to participate.
The Tenth Amendment states that any authority not designated to the federal government is reserved to the states and the people.
Bursch has argued 11 U.S. Supreme Court cases and obtained summary reversal on three more, compiling a Supreme Court merits record of 10-2-2.
Tennessee decided last year to appeal a lower court’s dismissal of its case.
“The federal government is forcing the tax-paying citizens of Tennessee to fund the federal refugee resettlement program despite their elected state officials withdrawing from the program,” Kate Oliveri, a lawyer for Thomas More, explained at the time.
After Tennessee withdrew from the program, the federal government then assigned a private organization to run its resettlements in Tennessee, prompting the lawsuit. The feds also threatened to cut billions of dollars in funding from the state if it didn’t pay the costs of the program.
In the original complaint, filed in 2017, TMLC explained there are critical constitutional questions, such as whether or not the federal government can force the state to pay for a voluntary program from which it formally has withdrawn.
Citing Supreme Court Chief Justice John Roberts’ admonition that the states “are separate and independent sovereigns” and “sometimes they have to act like it,” the state took the fight to the courts.
The state officially withdrew from the federal refugee resettlement program in 2007, but “the government continues, to this day, to commandeer state tax dollars to fund it,” TMLC said.
It’s all part of the fight over the settlement of refugees from the Middle East in small communities nationwide that escalated under the administration of Barack Obama and continues under the Trump administration.
One concern is that terrorists could be brought to the U.S. under the guise of being a refugee. Also, critics have noted that many refugees are young men looking for economic opportunities, and they are overwhelmingly Muslim.
The case was filed on behalf of the state of Tennessee, the Tennessee General Assembly, and state legislators Terri Lynn Weaver and John Stevens.
“Tennessee has a history of supporting the Tenth Amendment and state sovereignty,” the legal team explained. “In 2009, House Joint Resolution 108, which passed in the Senate 31-0 and in the House by 85-2, demanded that the federal government halt its practice of imposing mandates upon the states for purposes not enumerated by the U.S. Constitution.”
TMLC said that when Congress adopted the Refugee Resettlement Act in 1980, the intent was to assure full federal reimbursement for the costs. But the reimbursements soon were reduced and were eliminated entirely by 1991. The state contends the Constitution forbids the federal government from “commandeering state funds” to support the federal program.