PHOENIX, Ariz. (March 3, 2016) – An Arizona bill that would prohibit state cooperation with some contentious federal refugee resettlement programs passed an important House committee this week. If ultimately passed into law, the legislation would take a significant step towards nullifying these programs in practice within the state.

A coalition of seven Republican representatives in Arizona introduced House Bill 2370 (HB2370) in January. The legislation would prohibit the state from using any personnel or state financial resources to enforce, administer or cooperate with any action of the United States government that places within the state any refugee, unaccompanied alien child or other person who is not a citizen of the United States unless they have undergone a thorough background check and the federal government as agreed to reimburse the state of Arizona for any expenses incurred in the resettlement process, including ongoing costs.

The Arizona bill represents a practical implementation of Proposition 122, a voter-approved amendment to the state constitution in 2014 that provides a mechanism for refusing state resources to federal programs.

The House Rules Committee passed the measure 6-3 on Monday.

The bill’s legislative findings create a strong basis for passing the bill, essentially saying the state will not foot the bill for refugees the federal government forces it to take. In a nutshell, if the feds want them there, they will have to pay for it and administer the program themselves.

“It typically costs the taxpayers of this state tens of thousands of dollars annually to provide public education and public assistance for each noncitizen refugee, unaccompanied alien child or other noncitizen placed within this state by the United States government. The United States government has not provided full reimbursement of all state and local costs associated with the placement of noncitizen refugees, unaccompanied alien children and other noncitizens placed within this state by the United States government.”

FEDERAL JUDGE’S RULING

Earlier this week, a federal judge blocked Indiana Gov. Mike Pence’s order barring state agencies from helping Syrian refugees. But Pence’s order was different from HB2370 legislation in two important ways.

First, the Indiana order only applied to certain refugees. U.S. District Judge Tanya Walton Pratt said the order “clearly discriminates against Syrian refugees based on their national origin.” The Arizona bill blocks state assistance to any non-citizen refugees, not only those from certain countries or regions. This avoids possible 14th Amendment equal protection concerns.

Second, the Indiana order withheld federal grant money. The feds have the authority to place conditions on money it gives to states. But HB2370 only withholds state funding, not federal grant money. The state maintains the right to control its own funds. This falls squarely within the scope of the anti-commandeering doctrine.

Neither issue cited by Pratt in her injunction would apply to HB2370.

PRACTICAL EFFECT

HB2370 would not authorize the state to actively interfere with federal resettlement of refugees, but they would stop any and all state assistance. Practically speaking, passage of the bill would make resettlement of refugees Arizona extremely difficult.

Private voluntary agencies generally handle refugee reception and placement services, but various state and local agencies facilitate the federal refugee resettlement program.

These state programs 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.”

HB2370 rest 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.

Practically speaking, passage of HB2370 would drastically hinder refugee resettlement in Arizona. While resettlement is a federal policy, the feds depend on state cooperation to implement it. Without state help, the likelihood of any resettlement happening is greatly reduced.

Mike Maharrey