The United States Court of Appeals for the 7th Circuit ruled today that Indiana Governor Mike Pence could not discriminate against Syrian refugees by withholding Federal moneys from organizations assisting their resettlement. Conservative Judge Richard Posner, a Reagan-appointee, wrote a scathing opinion for a unanimous court.
Pence’s brief asserted that “the State’s compelling interest in protecting its residents from the well‐documented threat of terrorists posing as refugees to gain entry into Western countries.” But, Judge Posner wrote, “the brief provides no evidence that Syrian terrorists are posing as refugees or that Syrian refugees have ever committed acts of terrorism in the United States. Indeed, as far as can be determined from public sources, no Syrian refugees have been arrested or prosecuted for terrorist acts or attempts 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 terror‐ ism in whatever states Syrian refugees were shunted to. 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.”
Posner writes that Pence:
argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana. But that’s the equivalent of his say‐ ing (not that he does say) that he wants to forbid black peo‐ ple to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is dis‐ crimination on the basis of nationality.
The court said that Pence was merely casting his own nightmares as realities. According to Judge Posner, the “governor of Indiana believes, though without evidence, that some of these [refugees] were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States in order to commit terrorist acts here. No evidence of this belief has been presented, however; it is nightmare speculation.”
Judge Posner gives a good explanation of what the reality of refugee admissions is like:
Because of fear of terrorist infiltration––apart from the massive 9/11 terrorist attacks, Boston, New York, and San Bernardino (California) have been targets of terrorist attacks since 2001 by persons not born in the United States––all per‐ sons seeking to enter the United States as refugees are re‐ quired to undergo multiple layers of screening by the federal government, following screening by the United Nations High Commissioner for Refugees, before they can be admit‐ ted to the United States. The process can take up to two years. Of course there can be no certainty that no terrorist will ever slip through the screen…