Does Texas have to follow federal refugee-funding rules that aren't in the statute?

Plain-English summary

A state senator asked the AG two questions about Texas's use of federal refugee dollars. The federal Refugee Act of 1980 created the Office of Refugee Resettlement (ORR), which funds state refugee-resettlement programs. States do not have to participate, and a state may withdraw on proper notice, after which ORR may let a private entity run the program. At the time of the opinion, twelve states had withdrawn while Texas remained in the program and received federal funding.

The first question asked whether Texas must comply with restrictions on federal refugee dollars that are not found in the text of federal law. The AG worked through the Spending Clause doctrine. Congress can attach conditions to federal money, but the Supreme Court requires that those conditions be "set out unambiguously" so a state knows what it is accepting, comparing federal spending legislation to a contract that recipients must accept voluntarily and knowingly. The federal refugee statute contains few express conditions; instead it requires states to follow the "standards, goals, and priorities" the ORR develops. The AG reasoned that by delegating the condition-setting to a federal agency rather than spelling the conditions out in the statute, Congress failed to give states clear notice, so a court would likely conclude that any condition not found in the text of a federal statute is unenforceable.

The second question asked whether any law prohibits Texas from performing its own security verifications when allocating refugee funding. The AG noted that the Refugee Act and its amendments neither address nor prohibit a state doing its own security assessments. The AG flagged two limits. First, federal immigration law is broad, and the Supreme Court has struck down some state laws as preempted, so depending on how a security verification is designed and administered, a fact question about preemption could arise. Second, a verification could implicate the Fourteenth Amendment's Equal Protection Clause, though a classification that does not draw a suspect line such as race or gender survives if there is any rational basis, and security concerns can supply one. The AG declined to opine on the legality of any specific verification, but found no law generally prohibiting the State from performing security verifications when allocating refugee funding.

Currency note

This opinion was issued in 2016. 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. Federal refugee-resettlement policy and the relevant regulations have changed since 2016, and Texas itself later changed its participation in the federal refugee program, so confirm the current federal and state framework before relying on these specifics.

What the opinion meant for those who asked

The requesting senator and the Legislature (as the opinion described it): The opinion told the senator that conditions on federal refugee money that do not appear in a federal statute would likely be unenforceable under the Supreme Court's clear-notice rule, and that no law generally barred the State from performing its own security verifications when allocating refugee funding.

State agencies administering refugee funds (as the opinion described it): The opinion framed agency-level conditions traceable only to ORR "standards, goals, and priorities," rather than to statutory text, as the kind a court would likely find unenforceable for lack of clear notice. It did not bless any particular security verification; it said only that none was generally prohibited.

Anyone designing a specific security verification (as the opinion described it): The opinion expressly declined to opine on the legality of any specific verification, noting that depending on its design a fact question about federal preemption could arise, and that the Equal Protection Clause could be implicated though a rational basis such as security would ordinarily satisfy it.

Common questions

Does Texas have to follow refugee-funding conditions that aren't in the federal statute?
The AG concluded a court would likely say no. Under the Spending Clause, conditions on federal money must be stated clearly in the law, and conditions traceable only to agency "standards, goals, and priorities" would likely be unenforceable.

Why does it matter whether a condition is in the statute?
Because the Supreme Court treats federal spending legislation like a contract: a state can only be bound by conditions it accepted knowingly, which requires Congress to give clear notice in the statute itself.

Can Texas run its own security checks before allocating refugee funding?
The AG found no law generally prohibiting it. The Refugee Act does not address state-run security assessments either way.

Are there any limits on those security checks?
The opinion noted two. A specific verification could raise a fact question about whether it is preempted by federal immigration law, and it could implicate the Equal Protection Clause, though a classification with a rational basis such as security generally passes.

Did the AG approve a specific security verification?
No. The AG expressly declined to opine on the legality of any particular verification and addressed only the general legal landscape.

Background and statutory framework

The Refugee Act of 1980 created the Office of Refugee Resettlement, which funds and administers domestic resettlement and assistance programs and may provide funds to states for their resettlement efforts (8 U.S.C. §§ 1521, 1522(a)(6); Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102). Participation is voluntary: a state may withdraw on proper notice, and ORR may then authorize a private entity to administer the program (45 C.F.R. § 400.301(a), (c)). As a condition of funding, a state must meet "standards, goals, and priorities" developed by the ORR Director that assure effective resettlement and economic self-sufficiency (8 U.S.C. § 1522(a)(6)(B)).

On the first question, the AG applied the Supreme Court's Spending Clause cases. Congress's power over immigration is broad, but conditions on federal funds "must be set out unambiguously," and "the key is ... what the States are clearly told regarding the conditions that go along with the acceptance" of the funds (Arizona v. United States, 132 S. Ct. 2492 (2012); Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006)). There can be "no knowing acceptance" if a state cannot ascertain what is expected, and Congress must "speak with a clear voice" (Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)). Because the refugee statute delegates the conditions to the ORR rather than stating them, the AG concluded a court would likely find non-statutory conditions unenforceable (8 U.S.C. § 1522(a)(6)).

On the second question, the AG found the Refugee Act silent on state security assessments (8 U.S.C. § 1522), but cautioned that a specific verification could be preempted depending on its design (Arizona, 132 S. Ct. at 2503) and could implicate equal protection (U.S. Const. amend. XIV, § 1). A classification not drawn along suspect lines survives if there is "any reasonably conceivable state of facts" providing a rational basis, and security concerns can supply one (Fed. Commc'ns Comm'n v. Beach Commc'ns, Inc., 508 U.S. 307 (1993); Unruh v. Moore, 326 Fed. App'x. 770 (5th Cir. 2009)). The AG therefore found no law generally prohibiting the State's security verifications while declining to opine on any specific one.

Citations

Constitutional, statutory, and regulatory provisions:

• U.S. Const. amend. XIV, § 1 (Equal Protection Clause)
• Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102
• 8 U.S.C. § 1521 (Office of Refugee Resettlement)
• 8 U.S.C. § 1522 (refugee assistance program)
• 8 U.S.C. § 1522(a)(6), (a)(6)(B) (state plan; standards, goals, and priorities)
• 45 C.F.R. § 400.301(a), (c) (state withdrawal; private-entity administration)

Cases:

• Arizona v. United States, 132 S. Ct. 2492 (2012)
• Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006)
• Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)
• Fed. Commc'ns Comm'n v. Beach Commc'ns, Inc., 508 U.S. 307 (1993)
• Unruh v. Moore, 326 Fed. App'x. 770 (5th Cir. 2009)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0087
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0087.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 17, 2016

The Honorable Charles Perry Opinion No. KP-0087
Chair, Committee on Agriculture, Water,
and Rural Affairs Re: State compliance with restrictions on
Texas State Senate federal refugee dollars (RQ-0074-KP)
Post Office Box 12068
Austin, Texas 78711-2068

Dear Senator Perry:

You ask two questions concerning the use of federal refugee dollars by the State of Texas. [1] The federal Refugee Act of 1980 established the Office of Refugee Resettlement (the "ORR"), which funds and administers programs for domestic resettlement and assistance to refugees. 8 U.S.C. § 1521; see Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102. Congress thereby authorized the ORR to provide funds to the states to assist in the states' refugee resettlement efforts. 8 U.S.C. § 1522(a)(6). Federal law does not require that states participate in the refugee program, and a state may cease participation by providing proper notice of its withdrawal from the program. 45 C.F.R. § 400.301(a). Upon a state's withdrawal, the ORR may authorize a private entity to administer the refugee program in the state. Id. § 400.301(c). To date, twelve states have chosen to withdraw, but Texas remains a part of the refugee program and currently receives federal funding to implement it in this state. [2]

As a condition of receiving federal funding, a state must "meet standards, goals, and priorities, developed by the Director [of ORR], which assure the effective resettlement of refugees and which promote their economic self-sufficiency as quickly as possible and the efficient provision of services." 8 U.S.C. § 1522(a)(6)(B). Related to this requirement, you first ask whether the State of Texas must "comply with restrictions on federal refugee dollars that are not found in the text of federal law." Request Letter at 1.

The Supreme Court has emphasized that "[t]he Government of the United States has broad, undoubted power over the subject of immigration," and "[f]ederal governance of immigration ... is extensive and complex." Arizona v. United States, 132 S. Ct. 2492, 2498-99 (2012). However, "[t]he pervasiveness of federal regulation does not diminish the importance of immigration policy to the States." Id. at 2500. While Congress has broad power to set the terms on which it disburses federal money to the states, any conditions it attaches to a state's acceptance of such funds "must be set out unambiguously." Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (quotation marks omitted). The U.S. Supreme Court has explained that "the key is ... what the States are clearly told regarding the conditions that go along with the acceptance" of federal funds. Id. at 304. There can "be no knowing acceptance if a state is unaware of the conditions or is unable to ascertain what is expected of it." Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). "Legislation enacted pursuant to the spending power is much in the nature of a contract, and therefore, to be bound by federally imposed conditions, recipients of federal funds must accept them voluntarily and knowingly." Murphy, 548 U.S. at 296 (quotation marks omitted). Thus, the Court has required that "Congress speak with a clear voice" to enable the states to exercise their choice knowingly. Halderman, 451 U.S. at 17 (emphasis added).

Few restrictions on refugee funding to the states are found in the text of the federal statute, and instead Congress has required that the states abide by the "standards, goals, and priorities" developed by the ORR. 8 U.S.C. § 1522(a)(6). In delegating this authority to a federal agency, Congress itself has failed to provide clear notice to the states about the conditions it is attaching to a state's acceptance of federal refugee dollars. A court would therefore likely conclude that any such conditions that are not found in the text of a federal statute are unenforceable under the Supreme Court's clear notice rule.

Your second question asks whether "there is a legal prohibition to the State of Texas performing security verifications when allocating refugee funding." Request Letter at 1. The federal Refugee Act of 1980 and its subsequent amendments do not specifically address nor prohibit the states from performing their own security assessments. See 8 U.S.C. § 1522. However, Congress has established laws for the treatment of immigrants and refugees in the United States, and the Supreme Court has invalidated certain state laws on the grounds that they are preempted by the federal immigration scheme. See Arizona, 132 S. Ct. at 2503 (concluding that a state law requiring aliens to carry registration documents was preempted by federal law). Depending on how specific security verifications are established and administered, a fact question could arise about whether specific verifications are preempted by federal law.

In addition, specific verifications could invoke the Equal Protection Clause of the Fourteenth Amendment, which requires that no state "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. Under traditional equal protection principles, however, action that does not draw a distinction along suspect lines such as race or gender passes muster under the Equal Protection Clause as long as "there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Fed. Commc'ns Comm'n v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993). There is no question that security concerns may provide a rational basis on which a state could distinguish between individuals deemed to pose a heightened security risk and those who do not. See Unruh v. Moore, 326 Fed. App'x. 770, 772 (5th Cir. 2009) (rejecting an equal protection claim based on rational basis where an individual was treated differently due to disciplinary history and security concerns). Thus, while we do not opine on the legality of any specific security verifications that the State may impose, we have not been directed to, nor do we find any law generally prohibiting the State from performing security verifications when allocating refugee funding.

SUMMARY

A court would likely conclude that any conditions placed on a state's acceptance of federal refugee dollars that are not found in the text of a federal statute are unenforceable because the conditions do not provide clear notice to the state of how it must use the federal funding.

We find no law generally prohibiting the State of Texas from performing security verifications when allocating refugee funding.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] See Letter from Honorable Charles Perry, Chair, Senate Comm. on Agric., Water & Rural Affairs, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 16, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Office of Refugee Resettlement, State Programs Annual Overview, http://www.acf.hhs.gov/programs/orr/state-programs-annual-overview.