'Don't Panic!' found at https://flic.kr/p/FDwKf by star5112 (https://flickr.com/people/johnjoh) used under Creative Commons Attribution-ShareAlike License (http://creativecommons.org/licenses/by-sa/2.0/)
'Don't Panic!' found at https://flic.kr/p/FDwKf by star5112 (https://flickr.com/people/johnjoh) used under Creative Commons Attribution-ShareAlike License (http://creativecommons.org/licenses/by-sa/2.0/)
'Don't Panic!' found at https://flic.kr/p/FDwKf by star5112 (https://flickr.com/people/johnjoh) used under Creative Commons Attribution-ShareAlike License (http://creativecommons.org/licenses/by-sa/2.0/)

On Friday, November 13, 2015, the city of Paris suffered a coordinated terrorist strike.  The group known alternately as ISIS, ISIL, or Daesh has claimed responsibility for nearly 130 deaths and 340 injuries, in what it characterizes as a fundamentalist Islamic crusade against Western culture and civilization.  Its mission, motives, and mandate are complex and - to a large extent - misunderstood.  For a thoughtful attempt at an explanation, see "What ISIS Really Wants", published by The Atlantic in March of this year.

World media have inundated the airwaves, the Internet, and print with copious amounts of information, including substantial misinformation.  For instance, initial accounts of the identity of the Paris attackers focused on a Syrian passport purportedly belonging to an ISIS-embedded terrorist.  However, recent reports indicate that the passport may be a fraud, and perhaps even a deliberate attempt by the attackers to create a culture of fear and doubt about the four-plus-million Syrians who have been displaced by the war in their homeland.

The international machinations, however important and compelling they may be, do not immediately and directly impact the practice of immigration law in a state such as New Hampshire, U.S.A.  Or, better stated, they SHOULD not impact us.  However, as of this writing, 31 United States governors have declared that they will not welcome - and even actively seek to exclude - Syrian refugees from resettling in their respective states.  For our part, New Hampshire Governor Maggie Hassan was the first Democrat to issue such a statement.  As the Boston Globe reported on Monday, Governor Hassan called "for a complete freeze of Syrian refugees entering the United States until the government can 'ensure robust refugee screening.' ”  [Note: No incoming population faces more rigorous scrutiny than refugees.]  Other governors have made similar proclamations, with some issuing Executive Orders banning state agencies from accepting or otherwise resettling any Syrian refugees.  Louisiana Governor - and until recently Presidential hopeful - Bobby Jindal (a first-generation American child of immigrants) issued an Executive Order instructing all state “departments, budget units, agencies, offices, entities, and officers of the executive branch of the State of Louisiana [to] utilize all lawful means to prevent the resettlement of Syrian refugees in the State of Louisiana while this Order is in effect.”

While the timing of, motivation for, and effectiveness of these orders raise many questions, one point merits exploration: GOVERNORS MAY NOT ENFORCE IMMIGRATION LAW, AND THESE ORDERS HAVE NO LEGAL EFFECT.

New Hampshire's Governor, for instance, must take the following oath upon assuming office:

“I do solemnly and sincerely swear and affirm that I will faithfully and impartially discharge and perform all duties incumbent on me as Governor, according to the best of my abilities, agreeably to the rules and regulations of this constitution and laws of the state of New Hampshire. So help me God.”

Curiously, the state constitution and God are directly referenced.  The federal constitution? Not so much.

So, let's take a moment and look at the actual LAW which applies to these exclsionary governors' decrees.  Asked more directly, are these governors' proposed actions even legal?

Short answer: No, they are not.  

  1. First, immigration is a federal issue.  The U.S. Constitution, federal law, and multiple Supreme Court precedents have settled that premise.  The Supremacy Clause found at Article VI, Clause 2 of the Constitution, which provides, rather umabiguously, 

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. 
  2. Second, states cannot lawfully discriminate on a person who is otherwise here legally (e.g., after being thouroughly vetted and admitted via the arduous refugee screening process).  In Graham v. Department of Pub. Welfare, 403 U.S. 365 (1971), the U.S. Supreme Court struck down states' denials of welfare benefits to lawful permanent residents based on additional term of residency requirements as violating the Constitution's Equal Protection Clause in the 14th Amendment, "No State shall [ ] deny to any person within its jurisdiction the equal protection of the laws".  
  3. Third, once legally in the United States, people have the right to travel freely. That right stems from the Privileges and Immunities Clause found at Article IV, Section 2, Clause 1 (sometimes called the  Comity Clause), and prohibits one state from treating citizens of other states in a discriminatory manner.  Justice Sandra O'Connor affirmed that right in Zobel v. Williams, 457 U.S. 55 (1982).

So, these gubernatorial proclamations are little more than rhetoric, offered by elected official who should know that they have no formal role in the administration of U.S. immigration law and policy. So, while the governors may puff and posture and proclaim, the reality is that effectuating virtually any of the proposals they have been peddling would violate one or more provisions of the U.S. Constitution.

Some of these same officials extol the Rule of Law when it fits more neatly into a particular political narrative.  However, real leadership is staying true to our best selves even in times of perceived crisis, or, perhaps especially in times of perceived crisis.

Of course, safety matters.  Of course, a dangerous world requires heightened caution.  But fomenting fear and distrust in an entire population because of the despicably horrific acts of an extreme few does not make us safer.  It makes us less human, and it tells the terorists that their tactics work.