The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Indiana, like many other states, has tried to deter the resettlement of Syrian refugees in the state, including by preventing state agencies from distributing money that would be used for such resettlement. Yesterday, a federal district court held (Exodus Refugee Immigration, Inc. v. Pence) that this constitutes national origin discrimination that violates the Equal Protection Clause:
In late 2015, Indiana Governor Mike Pence … directed Indiana state agencies to not pay federal grant funds to local refugee resettlement agencies, such as Exodus, for social services these agencies provide to the Syrian refugees they help resettle in Indiana. Governor Pence asserts that he issued this directive to deter the national resettlement organizations from placing Syrian refugees in Indiana….
"The Equal Protection Clause of the Fourteenth Amendment protects individuals from governmental discrimination." Swanson v. City of Chetek, 719 F.3d 780, 783 (7th Cir. 2013). If the governmental discrimination at issue "classifies by race, alienage, or national origin, [the Court] subject[s] the legislative action to strict scrutiny." Vision Church v. Village of Long Grove, 468 F.3d 975, 1000 (7th Cir. 2006)….
The State points to cases in which the term national origin is discussed in terms of ethnicity or ancestry [which are characteristics that the State argues its directive does not take into account]. See, e.g., Espinoza v. Farah Mfg. Co., 414 U.S. 86, 93 (1973) (interpreting the term "national origin" in Title VI of the Civil Rights Act, and discussing the term as it relates to ancestry, but not United States citizenship or alienage). But as Exodus points out, the Supreme Court—in the equal protection context—has equated national origin discrimination to discrimination based on one's nationality. See Graham v. Richardson, 403 U.S. 365, 371 (1965) ("[C]lassifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny."); see also Sklar v. Byrne, 727 F.2d 633, 636 (7th Cir. 1984) (listing "nationality" as a suspect class subject to strict scrutiny). The State's argument, therefore, that national origin discrimination does not include discrimination based on nationality is directly contrary to the Supreme Court's statement in Graham and cases following it. Moreover, the Supreme Court has held that classifications based on "country of origin" are subject to strict scrutiny, and in so doing discussed "country of origin" in term of both ancestry and nationality. Oyama v. California, 332 U.S. 633, 640 (1948) (holding that discrimination "based solely on … country of origin" requires a "compelling justification" to overcome an equal protection challenge).
The foregoing shows that, whether framed as ancestry, nationality, citizenship, or country of origin, national origin discrimination encompasses classifications based on where a person is from or based on specific characteristics that reflect as much. The fact that the Supreme Court uses different terms when discussing national origin discrimination reflects not, as the State argues, that national origin discrimination includes only discrimination based on one of these discrete categories; it instead reflects that such classifications are examples of ways in which national origin discrimination occurs.
Here, the State's directive, which singles out refugees of Syrian citizenship or those of no citizenship who last resided in Syria, can fairly be described as a classification based on nationality. But regardless of the precise word used to describe the State's classification, the State's own characterization of it removes any doubt that it discriminates based on national origin. The State's directive applies to "any refugee who is fleeing Syria," which is determined "by reference to the refugee's country of origin, i.e., the country of the refugee's citizenship or residence whose protection from persecution the refugee is unable or unwilling to seek." The State's argument based on this definition is essentially that it classifies based on a refugee's "country of origin," not its national origin. When stated as such, it seems patent that this is a distinction without a difference, as these terms are one in the same. This is especially true given that the Supreme Court has used "national origin," "nationality," and "country of origin" interchangeably when describing classifications subject to strict scrutiny. See Graham, 403 U.S. at 371; Oyama, 332 U.S. at 640….
To survive strict scrutiny, the challenged action "must be narrowly tailored to serve a compelling governmental interest."
The State suggests that it has a compelling interest in protecting Indiana residents from the threat of terrorism posed by refugees fleeing Syria. It presents evidence in the form of, among other things, Congressional reports and testimony from governmental officials regarding the potential threat posed by individuals seeking to commit acts of terrorism in the United States who pose as Syrian refugees. For example, the Assistant Director of the FBI's Counterterrorism Division, Michael Steinback, testified before Congress that a concern with conducting background checks for Syrian refugees is "the lack of our footprint on the ground in Syria, [and] that the databases won't have the information we need." And Director of the FBI, James Comey, testified regarding background checks for Syrian refugees, stating that the United States "could only query what  [it] ha[s] collected," but that the United States has far less in its databases with respect to Syrian refugees than Iraqi refugees.
Exodus presented countervailing evidence. For example, Exodus submitted the declaration from former Secretary of Homeland Security Janet Napolitano, who attests that all refugees "who have been admitted to the United States have passed through the highest levels of scrutiny from a law enforcement and national security perspective," and that these checks take approximately eighteen to twenty-four months to complete….
[T]he Court will assume without deciding that the State has a compelling interest in the safety and security of Indiana citizens…. [But] even if this asserted interest is compelling, the State's response is not "narrowly tailored to serve [that] compelling governmental interest." …
The State's attempt to further its asserted compelling interest in public safety by withholding federal funds for social services provided to Syrian refugees is a far cry from a means "specifically and narrowly framed to accomplish that purpose." As an initial matter, the record shows that the State's attempt to deter Voluntary Agencies from resettling Syrian refugees in Indiana has been utterly ineffective: several Syrian refugees have been resettled in Indiana since the State's directive, including by Exodus, and the Voluntary Agencies with which Exodus works have informed Exodus that they will continue to assign Syrian refugees to Exodus for resettlement in Indiana. It is difficult to see how a response could ever be narrowly tailored to achieve a goal when the only evidence before the Court on the matter reveals that the means chosen have not in any way advanced the goal; Syrian refugees have, and will continue to be, resettled in Indiana despite the directive.
But the fact that the State's purported attempt at deterrence is not at all working is merely one reason why the State's directive is not narrowly tailored. The purpose of the narrow tailoring requirement "is to ensure that the means chosen 'fit' th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype."
The withholding of funds from Exodus that are meant to provide social services to Syrian refugees in no way directly, or even indirectly, promotes the safety of Indiana citizens. The State's position to the contrary rests upon assumptions about which the evidence is, at best, unclear; specifically, that the withholding of these funds will deter Voluntary Agencies from resettling Syrian refugees here (which, as stated above, the evidence demonstrates is false) and that the specific Syrian refugees who are not resettled here because of that deterrence would pose a security risk (about which the State can only speculate).
Even if the State's desired deterrence was actually created, it would deter Voluntary Agencies from settling all Syrian refugees in Indiana, not just those who supposedly pose a security risk. For example, based upon evidence regarding Syrian refugees who have been or soon will be resettled in Indiana, this includes Syrian children as young as four years old. It is beyond reasonable argument to contend that a policy that purportedly deters four year olds from resettling in Indiana is narrowly tailored to serve the State's asserted interest in public safety. Simply put, the State's directive, even if it was effective, is dramatically over-inclusive and thus not narrowly tailored.
Related to the foregoing problems is the focus of the State's directive. The State deprives Syrian refugees that are already in Indiana of social services in the hopes that it will deter Voluntary Agencies from resettling other Syrian refugees in the State. This is essentially a policy of punishing Syrian refugees already in Indiana in the hopes that no more will come. As stated above, such a course does nothing to alleviate the alleged threat caused by the Syrian refugees that are already in Indiana, who, assuming they pose a security risk (which has not been proved), by their mere presence would pose a much greater one than Syrian refugees who have not yet settled here. It is difficult to see how a narrowly tailored response could include only the deterrence of future security risks, without at all addressing present ones.
The State implicitly confronts this problem by arguing that its method of deterrence is the State's only option given its limited authority to act in the immigration arena, but that does not mean its response is narrowly tailored. There is no requirement that every governmental classification can be sufficiently narrowly tailored such that it will overcome strict scrutiny. After all, the Supreme Court has observed that governmental conduct is "rarely … sustained in the face of strict scrutiny." …
Notably, the Court would reach the same conclusion even if the State's directive should be subject to rational-basis review instead of strict scrutiny. Applying rational-basis review, Exodus has shown that the State's "difference in treatment is not rationally related to a legitimate state interest." For the reasons stated, the State's legitimate interest in safety has in no way been furthered by its treatment of Syrian refugees differently than others. Syrian refugees continue to be resettled in Indiana, and there is no evidence that the State's goal of deterrence has had any effect. Accordingly, Exodus has a strong likelihood of success on the merits regardless of the level of scrutiny applied to the State's directive.
The plaintiffs also argued that the Indiana policy was barred by federal statutes, including a proviso that grant funds must be distributed "without regard to … nationality." The court suggested that plaintiffs likely had a strong case on this, too, but focused primarily on the Equal Protection Clause argument.
I'm not sure the court's constitutional analysis is correct, and I'm pretty sure that it will be appealed to the Seventh Circuit; but it's still an important decision, so I wanted to pass it along.
Note that even if state governments are barred from discriminating based on country of origin, the federal government might retain this power. The court has indeed read the Equal Protection Clause, which facially covers only states, as applying to the federal government, via the so-called equal protection component of the Due Process Clause. But the prohibition on discrimination based on foreign citizenship has been viewed as applying only to states, not to the federal government; and, more broadly, the federal power over immigration has been seen as justifying discrimination that would otherwise be forbidden (see, e.g., Kleindienst v. Mandel (1972), and the cases it cites).