COLUMBIA, S.C. (Dec. 4, 2015) – Several bills introduced in the South Carolina legislature would end state cooperation with some contentious federal refugee resettlement programs, a significant step towards nullifying them in practice in the state.

Legislators have filed five different bills that would limit state cooperation with Syrian refugee resettlement to varying degrees by denying the use of state personnel and resources.

Rep. Michael Pitts and Rep. Greg Delleney introduced the strongest of these bills on Thursday. The joint resolution (H.4488) would prohibit any state agency, department, entity, or instrumentality from assisting with or participating in the resettlement of refugees in the state pursuant to a federal refugee resettlement plan. The bill would also ban the state from expending any state funds, and from soliciting or accepting any federal funds, for such refugee resettlement.

Under South Carolina law, a joint resolution carries the weight of law.

The legislation wouldn’t actively interfere with federal resettlement of Middle Eastern Refugees, but it would stop any and all state assistance. Practically speaking, this would make the resettlement in South Carolina extremely difficult.

While two private voluntary agencies handle refugee reception and placement services in the state, but the South Carolina Department of Social Services runs a program to facilitate the federal refugee resettlement program.

“The Refugee Resettlement Program is established to help newly arriving population of refugees become self-sufficient in the shortest timeframe following their arrival in the United States. Refugees are individuals fleeing from persecution in their homelands who have been designated for resettlement elsewhere in the world. The Federal Office of Refugee Resettlement (ORR) provides funds, policy and over-site; but services are administered by the state.”

The state program provides vital cash, medical and social service assistance. In other words, the federal government depends on significant state action to resettle refugees. Without state administration of the federal program, it would be difficult to successfully resettle refugees. Even Ian Millhiser of ThinkProgress agrees, saying such policies would “potentially make settlement of refugees more difficult than it would be if the states cooperated.”

H.4488 rests on a rock-solid legal foundation known as the anti-commandeering doctrine. The Supreme Court has consistently held that the federal government cannot force states to provide resources for, or assist in implementing, any federal acts or programs. The Supreme Court established this doctrine primarily through four cases dating all the way back Prigg v. Pennsylvania in 1842.

Some states have used the same legal principle to establish “sanctuary cities” to limit cooperation with ICE.

Sen. Kevin Bryant introduced a similar resolution in the Senate. S.928 also denies material support to the any federal refugee resettlement plan, but provides some conditions the feds can meet to reestablish state cooperation. Once the US Department of State has reexamined the security concerns and established new processes for accepting refugees into the program, state support would resume.

S.928 also includes a provision requiring state law enforcement to “confirm that any refugees placed in South Carolina by the federal government pursuant to the Refugee Resettlement Program do not pose a public safety risk.”

Two additional House Bills take a similar approach, but just address funding. H.4477 and H.4408 feature different wording, but would essentially have the same effect – banning expenditure of any state funds on refugee resettlement.

A final proposed bill offers a more moderate approach. H.4396 would empower local governments to refuse cooperation with refugee resettlement. The legislation would allow a local government to apply for a moratorium on new refugee resettlement activities in a community that lacks sufficient “absorptive capacity.” The bill sets out a number of criteria to define “absorptive capacity” and requires the S.C. DSS to initiate evaluations for communities hosting refugees on a regular basis.

If the DSS determines insufficient “absorptive capacity” exists “the state office for refugees shall suspend additional resettlement of refugees in that community until the state refugee coordinator and the local government have jointly determined that sufficient absorptive capacity for refugee resettlement exists to implement the initial refugee placement plan prepared for the host refugee community.”

Like the broader proposals, local refusal to accept refugees could throw major roadblocks to resettlement in that community.

Practically speaking, passage of any of the first four bills hinder refugee resettlement in the state. While resettlement is a federal policy, the feds depend on the state to implement it in South Carolina. Without state help, the likelihood of any resettlement happening in the Palmetto State is greatly reduced. Passage of the fifth bill would bring the issue to a local level, and would allow a city or county to hinder resettlement in the same way.

All of the House Bills were referred to the House Committee on Judiciary for further consideration. The Senate bill was referred to the Senate Committee on General.

Mike Maharrey

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