to the sovereignty
The Anti-Commandeering Doctrine
Neither the General Assembly nor the People need to settle for mere political statements...
November 23, 2015 - Jefferson City, MO
How should Missouri respond to the Syrian refugee situation? Since immigration and naturalization are clearly constitutional functions of the federal government, what can Missouri do, constitutionally, if we decide that we don't want refugees resettled here?
I'm proud of my friends who have asked what the Christian's responsibility is in the matter. What does the Bible teach about situations like this? How should that affect what Missouri decides to do? How should that affect what Christians should do?
We'll explore the constitutional and scriptural answers to all of those questions in detail, below, but we'll start with a summary answer and warning about empty political responses to the overwhelming public outcry against resettlement of these unfortunate refugees in the United States.
THE ROLE OF GOVERNMENT
Although Article I, Section 8 of the U.S. Constitution clearly gives Congress the power to “To establish an uniform Rule of Naturalization,... throughout the United States,” that's not really what's at issue. Wholesale resettlement of refugees is an act of benevolence and there is no constitutional authority for the federal government to do benevolent acts for people in other lands, no matter how needy they are.
To the contrary, the primary Constitutional role of American state and federal government is to protect the liberty and security of Americans.
Certainly it makes no sense for government to put the liberty and security of citizens at risk in while pursuing benevolent actions it has no constitutional authority for in the first place!
And even if benevolent acts of this nature were authorized, they should only be pursued if there is true consensus among those who are expected to pay the price, whether the price is measured in dollars or the safety and security of their families. There is no such consensus.
Again, neither the federal or state governments have constitutional authority to transport and resettle refugees from foreign countries and Missouri has constitutional authority to resist such actions.
WHAT CAN MISSOURI DO ABOUT IT?
It may be true that Missouri can't prevent the federal government from letting refugees into the United States, and, once here, Missouri can not prevent them from either passing through or even settling in our state, but there IS a clear path to legal, constitutional, effective resistance to those actions.
Interestingly, that path was mapped out when U.S. Supreme Court provided one bright spot in the otherwise disastrous Obamacare opinion, NFIB v. Sebelious. That's when the Court built upon a 1997 opinion, Printz v. United States, in which they said that the federal government can not “commandeer” state resources to participate in a federal function. In NFIB v. Sebelious, they not only reaffirmed the anti-commandeering doctrine, they strengthened it by saying the federal government can't punish the states for not doing their bidding. The result is that states don't have to fear the loss of federal funds, or other reprisals, when they say “no” to what they believe are federal overreaches.
Missouri, as well as all the other states, can simply refuse to cooperate with any programs that would place refugees in our state.
ANTI-COMMANDEERING IN ACTION IN MISSOURI
The Missouri General Assembly is no stranger to the anti-commandeering concept. In 2014, they passed HB 1302 in an effort to fight ridiculous regulations on wood burning appliances by the federal Environmental Protection Agency. That bill established legislative oversight over all rules affecting the “manufacture, performance, or use of residential wood burning heaters or appliances,” effectively blocking state bureaucrats from being “commandeered” to do the EPA's bidding.
And in 2013, the General Assembly passed the Second Amendment Preservation Act, a bill that prevented state agencies from cooperating with unconstitutional federal gun control schemes. When a veto override failed by one vote in the Senate, the concept was revisited in a 2014 bill that received overwhelming support in the House and Senate, although it died on the last day of session.
ANTI-COMMANDEERING APPLIED TO SYRIAN REFUGEES
Although the decision to let refugees into the United States is a federal one, the process involves state action and cooperation.
According to this document, http://www.state.gov/j/prm/ra/index.htm, from the U.S. State Department, they work with several organizations as part of a “public / private” partnership for the first few months of a resettlement project. After that, it takes cooperation from the states to make the program work. Here's an excerpt:
"The Department of State’s Reception and Placement program provides assistance for refugees to settle in the United States. It supplies resettlement agencies a one-time sum per refugee to assist with meeting expenses during a refugee’s first few months in the United States. Most of these funds go toward the refugees’ rent, furnishings, food, and clothing, as well as to pay the costs of agency staff salaries, office space, and other resettlement-related expenses that are not donated or provided by volunteers."
"Though the Department of State’s Reception and Placement program is limited to the first three months after arrival, the Department of Health and Human Services’ Office of Refugee Resettlement works through the states and other nongovernmental organizations to provide longer-term cash and medical assistance, as well as language, employment, and social services."
This link from the Missouri Department of Social Services explains some of Missouri's role in the resettlement process: http://dss.mo.gov/fsd/refug.htm
That document identifies at least eight ways that at least three Missouri government agencies assist the federal government in refugee resettlement. And, to the credit of Speaker Todd Richardson and Senate Pro Tem Ron Richard, a joint committee of the House and Senate are trying to identify all the ways Missouri would be called upon to assist the federal government to resettle Syrian refugees.
While identifying the various ways states are called upon to facilitate refugee resettlement is very helpful, establishing an exhaustive list is not necessary to employ the anti-commandeering doctrine.
WITHHOLDING STATE APPROPRIATIONS IS NOT ENOUGH
Perhaps the easiest approach would be for the General Assembly to withhold budget line items that could be used for refugee resettlement, but such an approach would probably be too little, too late – especially since a budget adopted this spring may not have an affect on state agencies for many months. What's more, such tactics have been proven to be less than effective in the past, especially when the governor and a host of bureaucrats want to skirt the will of the General Assembly. For instance, when the Department of Revenue was found to be violating the statute that prohibits Missouri from implementing the Real ID Act, they were punished by withholding appropriations, contingent on getting into compliance. They never have – apparently they decided they didn't need the funds that were withheld.
With respect to resettlement of refugees from places where hate and animosity for Americans is prevalent, a stronger approach is needed. The approach needs to cover that which is not anticipated. It needs to be flexible. And it needs to include greater transparency and scrutiny than we would otherwise have if the process is left up to unelected bureaucrats.
Like HB 1302, the General Assembly should pass a law that requires legislative oversight of any and all refugee resettlement projects that in any way utilizes state resources.
Although it would be good to enumerate any resources we know about, a new law need not identify them all to be effective, since it would require specific legislative action for ANYTHING the state participates in, relative to refugee resettlement.
That approach offers a number of advantages:
HOW DOES THIS PLAN STACK UP TO THE BIBLICAL RESPONSIBILITIES OF CHRISTIANS?
Compassion for the downtrodden is clearly an American trait. Americans are among the most benevolent people in the world to both their own and people from other countries. And that for good reason – in both the New and Old Testaments, the Bible is replete with examples and instructions about helping those in need.
Loving your neighbor is the second great commandment, and when Jesus was asked, “Who is my neighbor?”, He used the parable of the good Samaritan to explain that anyone you encounter with a need is your neighbor. On top of all of that, the New Testament defines “pure and undefiled religion” as “visiting orphans and widows in their distress”. James 1:27
Those and other scriptures make a very good case for helping people like the Syrian refugees, but does it make the case for federal and state government resettlement of those people in the United States?
No, it doesn't.
First, the Bible does not reallocate what are the personal, individual responsibilities of Christians to the government. It doesn't say that the second great commandment is to get government to love your neighbors so you don't have to, yourself.
And the Bible doesn't say that “pure and undefiled religion” is accomplished through a proxy, especially not a proxy that forces other people to participate in your good works through taxation.
If helping the Syrian refugees is a good thing, then it is a personal, individual responsibility and not one that can be pawned off on government. I believe the Founders understood that concept and that's why the Constitution does not authorize the federal government to do benevolence for foreign people.
THE BIBLICAL CASE FOR THE PRIVATE SECTOR HELPING THE REFUGEES “OVER THERE” INSTEAD OF "HERE"
Although helping the poor and needy is a huge Bible theme, but an even larger theme is the preservation of God's way and His people. Under the Law of Moses, the Jews were told not to marry outside of their faith and to even exclude foreigners from their cities. (See Nehemiah 13.)
And in the New Testament, Christian are told that “bad company corrupts good morals” and that “a little leaven leavens the whole lump”, among other warnings about who and what you expose yourself and your children to. Visiting orphans and widows in their distress is only the first half of the definition of “pure and undefiled religion” in James 1:27, the rest of the verse says, “and to keep oneself unstained by the world.“
Yes, a Christian can be “in the world” without being “of the world”, but Christianity in American is already losing that battle, even without further diluting our culture with people who deny Jesus.
Jesus ate with the sinners of His day, and so should Christians today – how else can they influence them with the Gospel. But there IS a category of people the New Testament warns against even “receiving into your house” (2John 1:10) – that is, “those who do not acknowledge Jesus Christ as coming in the flesh. This is the deceiver and the antichrist”. (2John 1:7)
These, and other passages like them, beg the question, “What affect would an influx of people with a radically different set of values have on American culture?”, and, “How would such an influx affect the raising of your children and a Christian's responsibility to share the Gospel with others?”
In sum, the very Biblical principle of helping those in need is trumped by the prevailing principle of maintaining an environment that is conducive to Christians personal growth and ability to teach others, including their children about Jesus.
That, of course, doesn't mean we have no way to execute our responsibilities to needy people, like the Syrian refugees. Private citizens and organizations can still provide relief to them in safe havens closer to their own homes. And, by some estimations, helping these people “over there” is much more efficient then bringing them here, so more of them can be helped.
Forward this to your state Rep and Senator. Ask him or her to commit to settling for nothing less than a new law that establishes legislative oversight of refugee resettlement.