The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the US Court of Appeals for the Seventh Circuit upheld a trial court decision ruling against an Indiana policy denying benefits to Syrian refugees that are available to refugees from other countries. The policy was put in place by Indiana Governor Mike Pence, now the Republican nominee for vice president. Both Pence and his Democratic opponent, Tim Kaine, mentioned the decision in tonight's vice presidential debate.
Like the trial court, the Seventh Circuit ruled that the policy is likely illegal because it constitutes national origin discrimination. Here is the key passage from the opinion by Judge Richard Posner, probably the most eminent lower court federal judge in the country:
[Indiana Governor Mike Pence] argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana. But that's the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they're black but because he's afraid of them, and since race is therefore not his motive he isn't discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.
Even if blacks have a higher crime rate than whites, a law singling out blacks for differential treatment qualifies as racial discrimination. Similarly, Indiana's policy of discrimination against Syrian refugees qualifies as national origin discrimination even if Syrian refugees are, on average, more likely to be dangerous than those from other countries. One of the major purposes of constitutional restrictions on discrimination is to prevent the government from using the real or imagined misdeeds of a few members of a group from justifying wholesale discrimination against innocent people whose only wrong is that they happen to share the same race, ethnicity, or national origin.
The Seventh Circuit opinion also emphasizes that there is little evidence that the Syrian refugees do in fact pose a serious threat or that—if they do—Governor Pence's policy would reduce it. At the very least, there is nowhere near sufficient evidence for the policy to pass "strict scrutiny," the very high level of scrutiny that national origin discrimination is subject to under longstanding Supreme Court precedent.
It is worth noting that the other two judges on the Seventh Circuit panel were Frank Easterbrook and Diane Sykes, both very prominent conservative jurists. Judge Sykes is often thought of as a possible GOP Supreme Court nominee. Both Easterbrook and Sykes joined Judge Posner's opinion in full.
While the trial court ruled that the Indiana policy violates the Equal Protection Clause of the Fourteenth Amendment, the Seventh Circuit opinion relies on a federal statute barring discrimination on the basis of "nationality" in allocating federal funds granted to states under the Refugee Act. However, if the policy qualifies as nationality discrimination under the Act, it also surely qualifies as "national origin" discrimination under the Constitution, as the two concepts are essentially identical. As Judge Posner's opinion notes, under the Refugee act, a refugee's country of origin qualifies as his "nationality" unless the person in question is stateless.
This appellate decision upholds the trial court's preliminary injunction against the Indiana policy. It is not yet a final ruling. However, both the trial judge and Seventh Circuit endorsed the injunction because the relief organization challenging the policy is likely to prevail on the merits when the final decision made. Indeed, that is the standard the plaintiffs had to meet to get a preliminary injunction.
I discussed the lower court decision upheld by the Seventh Circuit in this post. I first predicted that state discrimination against Syrian refugees would be vulnerable to constitutional challenge as national origin discrimination last November, when various Republican governors first began to advocate such policies.