Could Tennessee's governor or legislature refuse to accept Syrian refugees (or refugees from any particular country or religion) that the federal government had already admitted?

Plain-English summary

In the wake of the November 2015 Paris attacks, several governors (Tennessee's included) publicly stated their states would not accept Syrian refugees. Representatives Clemmons, Powell, and Stewart asked the AG whether the legislative or executive branch of Tennessee actually had the legal authority to refuse refugees that the federal government had already admitted.

The AG said no, and gave two independent reasons grounded in U.S. Supreme Court doctrine.

Field preemption. The U.S. Constitution gives the federal government broad authority over immigration and the status of aliens. The Supreme Court in Arizona v. United States held that Congress has occupied core areas of immigration law, and DeCanas held that the power to "determin[e] who should or should not be admitted into the country" is "unquestionably exclusively a federal power." Once Congress has decided to occupy the field, parallel state regulation is preempted even if it does not conflict.

Conflict preemption. Even apart from field preemption, a state refusal to allow refugee resettlement would directly conflict with the federal admission decision. If every state refused resettlement, the federal grant of refugee status would have no effect. That kind of state action "stand[s] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" (Hines) and is preempted.

The same analysis applies whether the state's refusal is framed as a refusal to "admit" refugees or as a refusal of "initial placement." The federal Office of Refugee Resettlement and the State Department's Bureau of Population, Refugees, and Migration handle placement in cooperation with nine national voluntary agencies. States are entitled to be consulted (8 U.S.C. § 1522(a)(2)) and the federal agencies must "take into account" state recommendations "to the maximum extent possible." But states do not get a veto.

Tennessee's own Refugee Absorptive Capacity Act (Tenn. Code Ann. ch. 4, title 38) reflects this constitutional limit. It does not let the state refuse refugees; instead, it sets up a process by which a local government can formally request a federal moratorium on additional resettlement in a "host community" that lacks absorptive capacity. The U.S. Department of State may then choose to suspend additional resettlement in that community. The decision remains federal.

Because Question 1's answer was no, the AG declared Questions 2 and 3 (whether a refusal could be based solely on country of origin or solely on religion) moot. The AG did not reach the obvious additional constitutional issues those questions raised, including equal protection and free exercise, since the preemption answer alone forecloses the policy.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could Tennessee block federal funds from being used for refugee resettlement within its borders?
A: As the opinion noted, Tennessee withdrew from the federal refugee resettlement grant program in 2008. Federal funds now flow through Catholic Charities as the designated state alternative, not the state government itself. That structural choice is permitted by federal law (8 U.S.C. § 1522(e)(7)) but does not equate to a veto over admission.

Q: What about the moratorium mechanism in Tenn. Code Ann. § 4-38-104?
A: The state moratorium statute is a request mechanism, not a veto. A local government can document its absorptive-capacity concerns, forward the request through Tennessee's office of refugees, and the State Department "may" then suspend additional placements until capacity is restored. The federal decision controls; the state can speak but cannot decide.

Q: Could Tennessee have constitutionally distinguished by country of origin?
A: The AG did not reach the question because field and conflict preemption answered the threshold question. As a practical matter, country-of-origin discrimination by a state in the refugee context would have run into the same preemption analysis (immigration is federal) and likely also equal protection concerns. The opinion's silence on this point should not be read as approval.

Q: Was there any role for the state government at all?
A: Yes. Federal law expressly requires the Office of Refugee Resettlement and the State Department to consult with state and local governments before placement (8 U.S.C. § 1522(a)(2)). The state can express concerns about absorption capacity, can flag specific localities, and can decline federal grant administration as Tennessee did in 2008. What it cannot do is refuse to receive a refugee whom the federal government has admitted.

Background and statutory framework

Federal refugee admission is governed by the Immigration and Nationality Act, as amended by the Refugee Act of 1980. The President sets annual admission ceilings (8 U.S.C. § 1157(a)(2)-(3)). U.S. Citizenship and Immigration Services processes individual applications (§ 1157(c)(1)). After admission, the Office of Refugee Resettlement and the State Department's Bureau of Population, Refugees, and Migration coordinate placement with nine national voluntary agencies (§ 1522(b)(1)(A)).

The Supremacy Clause (U.S. Const. art. VI, cl. 2) generates three preemption modes: express, field, and conflict (Arizona v. United States). The AG concluded both field and conflict preemption foreclosed a state-level refusal.

Tennessee's Refugee Absorptive Capacity Act (Tenn. Code Ann. §§ 4-38-101 to -104), passed in 2011, reflects an attempt to give Tennessee some influence over placement within the constitutional limits.

Citations and references

Federal statutes:

• 8 U.S.C. § 1101(a)(42)(A) (definition of "refugee")
• 8 U.S.C. § 1157 (admission ceilings and processing)
• 8 U.S.C. § 1522 (resettlement, placement, consultation requirements)
• U.S. Const. art. VI, cl. 2 (Supremacy Clause)

State statutes:

• Tenn. Code Ann. § 4-38-102 (definitions including "absorptive capacity")
• Tenn. Code Ann. § 4-38-103 (coordination with local governments)
• Tenn. Code Ann. § 4-38-104 (local moratorium request process)

Cases:

• Arizona v. United States, 132 S. Ct. 2492 (2012) (immigration preemption framework)
• Hines v. Davidowitz, 312 U.S. 52 (1941) (alien-registration preemption; obstacle preemption)
• DeCanas v. Bica, 424 U.S. 351 (1976) (admission is exclusively federal)
• Toll v. Moreno, 458 U.S. 1 (1982) (federal authority over admission)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-77.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
November 30, 2015

Opinion No. 15-77

Authority of the State of Tennessee to Refuse Resettlement of Refugees

Question 1

May the legislative branch or the executive branch of the State of Tennessee refuse to accept for resettlement within the State individuals whom the federal government has processed and admitted to the United States as refugees?

Opinion 1

No. Such a refusal would impinge on and conflict with the federal government's authority to regulate the admission of aliens to the United States and thus would violate the Supremacy Clause of the U.S. Constitution.

Question 2

May such a refusal be based solely on the individual's country of origin?

Opinion 2

Because the answer to Question 1 is no, this question is rendered moot and requires no separate response.

Question 3

May such a refusal be based solely on the individual's religion?

Opinion 3

Because the answer to Question 1 is no, this question is rendered moot and requires no separate response.

ANALYSIS

You have asked in essence whether the State of Tennessee has authority to refuse to accept for resettlement within the State individuals whom the federal government has processed and admitted to the United States as refugees. To provide context for our legal analysis in response to that question, we begin with a description of the federal regulatory scheme governing the admission and placement of refugees in the United States and applicable Tennessee law concerning refugees.

I. Federal Law Governing the Admission of Refugees

Federal law defines "refugee" to mean, generally, "any person who is outside any country of such person's nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). The admission and resettlement of refugees in the United States is governed by the federal Immigration and Nationality Act, as amended by the Refugee Act of 1980. See generally 8 U.S.C. §§ 1157, 1521-1524.

The President is responsible for determining the total number of refugees that will be admitted to the United States each year and for allocating that number among specific regions of "special humanitarian concern."[1] See 8 U.S.C. § 1157(a)(2)-(3). Subject to those numerical limitations, the U.S. Citizenship and Immigration Services within the Department of Homeland Security processes applications for refugee status and determines whether to admit an individual to the United States as a refugee. See id. § 1157(c)(1); 8 C.F.R. pt. 207.

The Director of the Office of Refugee Resettlement within the Department of Health and Human Services, or another officer that the President designates, has authority to "make grants to, and contracts with, public or private nonprofit agencies for initial resettlement (including initial reception and placement with sponsors) of refugees in the United States." 8 U.S.C. § 1522(b)(1)(A); see also id. § 1522(b)(1)(B) (allowing the President to designate another officer to exercise such authority). Pursuant to this grant of authority, the Department of State's Bureau of Population, Refugees, and Migration has entered into cooperative agreements with nine national voluntary agencies to resettle refugees. The Bureau assigns each admitted refugee to one of the nine resettlement agencies. The agency then decides where in the United States the refugee will be placed, subject to final approval from the Bureau. See U.S. Gov't Accountability Office, GAO-12-729, Refugee Resettlement: Greater Consultation with Community Stakeholders Could Strengthen Program 4-5, 7 (2012); see also U.S. Dep't of State, The Reception and Placement Program, available at http://www.state.gov/j/prm/ra/receptionplacement/index.htm (last visited Nov. 30, 2015).

Both the Director of the Office of Refugee Resettlement and the Bureau are required to "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." 8 U.S.C. § 1522(a)(2)(A). The Director is further charged with "develop[ing] and implement[ing], in consultation with representatives of voluntary agencies and State and local governments, policies and strategies for the placement and resettlement of refugees within the United States." Id. § 1522(a)(2)(B). Such policies and strategies must

(i) insure that a refugee is not initially placed or resettled in an area highly impacted (as determined under regulations prescribed by the Director after consultation with such agencies and governments) by the presence of refugees or comparable populations unless the refugee has a spouse, parent, sibling, son, or daughter residing in that area,

(ii) provide for a mechanism whereby representatives of local affiliates of voluntary agencies regularly (not less often than quarterly) meet with representatives of State and local governments to plan and coordinate in advance of their arrival the appropriate placement of refugees among the various States and localities, and

(iii) take into account—

(I) the proportion of refugees and comparable entrants in the population in the area,

(II) the availability of employment opportunities, affordable housing, and public and private resources . . . for refugees in the area,

(III) the likelihood of refugees placed in the area becoming self-sufficient and free from long-term dependence on public assistance, and

(IV) the secondary migration of refugees to and from the area that is likely to occur.

Id. § 1522(a)(2)(C). And Congress has also instructed that, "[w]ith respect to the location of placement of refugees within a State," the Bureau "shall, consistent with such policies and strategies and to the maximum extent possible, take into account recommendations of the State." Id. § 1522(a)(2)(D).

The Office of Refugee Resettlement makes federal funds available to states to support the resettlement of refugees within their borders. See 8 U.S.C. § 1522; 45 C.F.R. pt. 400. The State of Tennessee previously received these funds and administered Tennessee's refugee resettlement program directly, but the State withdrew from the grant program in 2008. See 2011 Tenn. Pub. Acts, ch. 316, pmbl. Federal funds now flow to refugees in Tennessee through an alternative federal grant program that is administered by Catholic Charities rather than directly by the State. See id.; 8 U.S.C. § 1522(e)(7); 45 C.F.R. § 400.69.

II. Tennessee Law Concerning Refugees

In 2011, the Tennessee General Assembly enacted the Refugee Absorptive Capacity Act. See 2011 Tenn. Pub. Acts, ch. 316. Among other things, the Act requires Tennessee's office of refugees, which is currently run by Catholic Charities, to coordinate with local governments regarding the placement of refugees in advance of the refugees' arrival. See Tenn. Code Ann. § 4-38-103. The Act also allows the legislative body of a local government to adopt a resolution "request[ing] a moratorium on new refugee resettlement activities" by "documenting that the host community lacks absorptive capacity[2] and that further resettlement of refugees in the host community would result in an adverse impact to existing residents." Id. § 4-38-104(a). Any such request is forwarded to Tennessee's office of refugees, which may then forward the request to the U.S. Department of State. Id. § 4-38-104(b). The U.S. Department of State "may thereafter suspend additional resettlement of refugees in that community, until the state refugee coordinator and the local government have jointly determined that absorptive capacity for refugee resettlement exists to implement any further refugee resettlement activities in the host community." Id. § 4-38-104(c).

III. Legal Analysis

Question 1. The first question is whether the legislative branch or the executive branch of the State of Tennessee may refuse to accept for resettlement in the State individuals whom the federal government has processed and admitted to the United States as refugees. For the reasons explained below, it is our opinion that such a refusal would impinge on and conflict with the federal government's authority to regulate the admission of aliens to the United States and thus would violate the Supremacy Clause of the U.S. Constitution.

The Supremacy Clause of the U.S. Constitution "provides a clear rule that federal law '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.'" Arizona v. United States, 132 S. Ct. 2492, 2500 (2012) (quoting U.S. Const. art. VI, cl. 2). It follows from this clear rule that "Congress has the power to preempt state law." Id. There are three kinds of preemption: express preemption, field preemption, and conflict preemption. See id. at 2501. As relevant here, field preemption occurs when Congress has determined to exercise exclusive authority and "displace state law altogether" in a particular field. Id. at 2501. Conflict preemption, as the name suggests, occurs when state law "conflict[s] with federal law." Id. at 2501.

It is the opinion of this Office that the State of Tennessee is precluded under principles of both field preemption and conflict preemption from refusing to allow refugees to resettle within the State's borders. While the U.S. Supreme Court has "never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted," DeCanas v. Bica, 424 U.S. 351, 355 (1976), it has found field preemption with respect to certain core areas of immigration law. See Arizona, 132 S. Ct. at 2502 (concluding that "the Federal Government has occupied the field of alien registration"); Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941) (holding that "where the federal government, in the exercise of its superior authority in this field, has enacted . . . a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations"). In DeCanas, the Court stated that the "[p]ower to regulate immigration," which it described as the power to "determin[e] who should or should not be admitted into the country, and the conditions under which a legal entrant may remain," is "unquestionably exclusively a federal power." 424 U.S. at 354-55; see also Arizona, 132 S. Ct. at 2498 ("The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.")[3]; Toll v. Moreno, 458 U.S. 1, 11 (1982) ("The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States . . . ." (internal quotation marks omitted)); Hines, 312 U.S. at 62 (recognizing "the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation"). That means that only the federal government has the authority to decide which aliens should be admitted to the United States as refugees. Such determinations are binding on the State of Tennessee, and the State is precluded from adopting its own policy regarding which aliens are entitled to be present within its borders. See Arizona, 132 S. Ct. at 2502 ("Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.").

Principles of conflict preemption also preclude the State of Tennessee from refusing to allow refugees to resettle within the State. Such a refusal would essentially deem inadmissible to Tennessee individuals whom the federal government, specifically the Department of Homeland Security, has already determined are entitled to refugee status and admission to the United States. Indeed, if every State decided to refuse the resettlement of refugees within its borders, the federal government's decision to grant an alien refugee status would be without effect. The State's determination would "stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" and therefore would be preempted. Hines, 312 U.S. at 67; see also Arizona, 132 S. Ct. at 2514 (Scalia, J., concurring in part and dissenting in part) (accepting "as a given that State regulation [of immigration] is excluded by the Constitution when . . . it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit").

A similar analysis applies if the refusal to allow refugees to resettle in the State is viewed as a policy regarding the initial placement of refugees, rather than a policy regarding their admissibility. As explained above, the federal government, in coordination with the nine voluntary resettlement agencies with whom it contracts, determines the initial placement of refugees in the United States. While states are entitled to be consulted about the federal government's placement decisions, see 8 U.S.C. § 1522(a)(2)(A)-(D), they are not given veto authority. If the federal government determines that refugees should be placed in Tennessee, principles of conflict preemption preclude the State from adopting a contrary policy.

It bears noting that, while the State of Tennessee must respect the federal government's determination that particular aliens are entitled to refugee status and admission to the United States, the State is not precluded from communicating with the federal government about concerns relating to the placement of refugees within the State. Federal law specifically requires the agencies that are responsible for refugee resettlement to consult with State and local governments concerning "the intended distribution of refugees among the States and localities before their placement in those States and localities." 8 U.S.C. § 1522(a)(2)(A); see also id. § 1522(a)(2)(B). And those agencies are required, to the extent possible, to "take into account recommendations of the State." Id. § 1522(a)(2)(D). Tennessee law, too, recognizes the importance of communication between the State and the federal government; it establishes a process for Tennessee's office of refugees to request a moratorium from the federal government on refugee resettlement in localities that lack "absorptive capacity." See Tenn. Code Ann. § 4-38-104.

Question 2. The second question is whether the State may refuse to admit refugees based solely on their country of origin. No separate response to this question is required because our conclusion that the State may not refuse to admit refugees as a general matter renders this second question moot.

Question 3. The third question is whether the State may refuse to admit refugees based solely on their religion. No separate response to this question is required because our conclusion that the State may not refuse to admit refugees as a general matter renders this third question moot.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

SARAH K. CAMPBELL
Special Assistant to the Solicitor General and the Attorney General

Requested by:
The Honorable John Ray Clemmons, The Honorable Jason Powell, and The Honorable Mike Stewart, State Representatives

[1] The President may increase the number of refugees to be admitted in a given year if he determines that an "unforeseen refugee situation exists" and certain other conditions are met. 8 U.S.C. § 1157(b).

[2] A community's "absorptive capacity" is determined by evaluating factors such as the availability of affordable housing, the capacity of local schools, and the ability of the local economy to absorb new workers. See Tenn. Code Ann. § 4-38-102(1).

[3] The federal government's authority over "the subject of immigration and the status of aliens" stems in part from its "inherent power as a sovereign to control and conduct relations with foreign nations." Arizona, 132 S. Ct. at 2498. As the U.S. Supreme Court has explained, "[i]mmigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws." Id.