The Legality of Trump's Assault on Refugees Is Only Half the Question. Should America Protect the Oppressed? | Opinion

Much of the commentary about the impeachment trial in the Senate has focused on what it says about the American condition at the beginning of a new decade. Partisan. Divided. Tactical.

But the fact that the president is on trial—complete with the chief justice of the Supreme Court presiding over the Senate—also reminds us of something historic and deep in the American system. In this constitutional republic, law and politics are intertwined in a completely different way than in a parliamentary system. It is not just that so many lawyers become politicians; it is also that the law represents an avenue for the pursuit of politics by other means.

Policy issues are advanced through not just policy and politics, but also law and litigation. And we are seeing that in parallel with the impeachment debate on an issue close to the deepest questions of the identity of America, what America represents and how it should live out its founding creed. The issue is whether America as a nation has a commitment to the oppressed and vulnerable from around the world, a commitment to offer them haven from war and persecution through refugee resettlement, or whether this is a discretionary option for states and localities that the federal government is happy to discourage.

Refugee resettlement has traditionally been a bipartisan issue. President Ronald Reagan committed to admitting more refugees, for instance, than any other president—with an admissions ceiling of 140,000 in 1982 alone. Furthermore, the average refugee admissions goal since 1980—set by Democrats and Republicans alike—has been 95,000. Refugees are referred first by the United Nations to identify their vulnerable refugee status, for example victims of torture or those with urgent medical issues, then double- and triple-checked by U.S. authorities before they are given the chance to start a new life around the country.

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The Trump administration, however, has upended that commitment in three ways. First, it has reduced the number of refugees to be admitted to 18,000, a dramatic departure from historic norms. Furthermore, it has halted U.N. referrals—all but eliminating the needs-based bias of the program. Lastly, it has tried to give localities a choice about whether they want to be part of the federal system. In his September 26 executive order, "Enhancing State and Local Involvement in Refugee Resettlement," the president mandated that localities and states had to give consent to the federal policy of allocating refugees in their state or county. Immediately, law and politics, and the balance of the two, came into play.

One approach was to work at the local level to persuade states and municipalities to opt into the system and give consent for refugee resettlement. So far, 42 states have done so. Nineteen of them are led by Republican governors. Some of the consent letters are the most heartrending commitments to the idea that America should indeed be a source of hope for the "poor and huddled masses" of Emma Lazarus' poem inscribed on the Statue of Liberty.

Governor Gary Herbert, Republican of Utah, noted that "refugees become contributors in our schools, churches and other civic institutions, even helping serve more recent refugees," adding, "this marvelous compassion is simply embedded into [Utah's] culture."

In the heartland, Kansas' Democratic Governor Laura Kelly noted of her state's sense of duty, "Kansans are among the most welcoming, open-hearted people in the nation.... I know they'll continue to accept these peaceful refugees into their communities, just as so many other states have done."

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The strength of bipartisan commitment has only been broken by Texas, whose governor pleaded that Texas was bearing too large a share of the refugee burden—despite estimates that show refugees' contributions in the state at $4.6 billion. He did, however, admit an obvious point: Refugees might be admitted to Arizona but then move to Texas, and there is nothing to stop them.

The complementary approach, the legal one, has reached an important milestone this month. The suit filed in Maryland federal court argued that the administration breached the law in requiring prior consent from states and municipalities for the admission of refugees under the federal program. The judge in the case granted an injunction against the president's executive order, arguing that the order was "arbitrary and capricious as well as inherently susceptible to hidden bias," before noting it broke with Congress' intent in the United States Refugee Act of 1980.

As of today, the president's policy is in limbo. And so too are refugees hoping to find safety in America, shut out by the low admissions level. But the tug of the law plays both ways: Would the overturning of the Maryland decision in a higher court mean the Trump administration's policy was not just legal but right? Surely not. Just because something does not flout the law does not mean that it is wise. And the danger of the law being a recourse for politics is that it becomes a substitute for politics.

Refugee child
A child, part of a group of Salvadoran migrants, looks on as they start their journey toward the United States in San Salvador on January 20. Marvin Recinos/AFP/Getty

While refugee resettlement has been bipartisan for many years in America, it has often been hidden. When I spoke in California a few years ago, a tearful young woman came up to me. I asked why she was crying, and she explained that her refugee parents had not wanted to draw attention to their status, feeling that legal protection was plenty for them, and that in her view the lack of public discussion about refugees had contributed to the conditions for the backlash against refugees. It's a good reminder never to take public consent for granted.

Just this week, we once again see setbacks for new Americans. The Supreme Court lifted a nationwide injunction on a test of means—through the administration's "public charge" rule—expanding disqualifying factors for immigrants who seek permanent status.

History tells us that such changes make immigrant families, even those—like refugees—who are exempt from the public charge test, too afraid to access healthy food and health care. The last time the definition of "public charge" was expanded, refugee use of benefits fell drastically—food stamp use fell by 60 percent, Temporary Assistance for Needy Families (TANF) by 78 percent and Medicaid by 39 percent.

The truth is that whether or not America should admit refugees is a political and policy question, while the government's specific approach to the issue is a legal matter. As Joseph A. Califano Jr. said of the Refugee Act in 1980, the refugee issue required the United States to "reveal to the world—and more important to ourselves—whether we truly live by our ideals or simply carve them on our monuments."

David Miliband is president and CEO of the International Rescue Committee (IRC) and a former U.K. foreign secretary.

The views expressed in this article are the author's own.​​​​

The Legality of Trump's Assault on Refugees Is Only Half the Question. Should America Protect the Oppressed? | Opinion | Opinion