In mid-July, “Politico” broke a story that the Trump administration is pressing officials to cut the refugee cap to zero for fiscal 2020. Not only are the cuts themselves unprecedented, but the way the administration is going about these determinations is as equally anomalous and may even violate the law.
At the end of each summer, the president’s administration must report the estimated number of refugees in need of resettlement and the anticipated allocation for the coming fiscal year to both House and Senate judiciary committees.
Additionally, the president is required by law to provide for periodic discussion between designated members of the committees and representatives of the administration about the global refugee situation. Records of those discussions should be printed in the congressional record.
The purpose and substance of these conversations — especially leading up to the final presidential determination — are not nebulous.
Per the Immigration and Nationality Act, “appropriate consultation” between designated Cabinet representatives and Congress requires the president to justify his proposed admission numbers.
Appropriate justification should include, a description of the global refugee situation, including what countries are willing to assist and admit refugees; an analysis of the refugees’ countries of origin and the proposed allocation of admitted refugees; an estimated cost for refugee resettlement; and an analysis of the impact resettlement will have on U.S. foreign policy and domestic policy. Members of the judiciary can also request additional information from the administration.
Following the initiation of appropriate consultation, but prior to making a final determination, a hearing is required — by law— to be held unless public disclosure of the details of the proposal would jeopardize the lives or safety of individuals.
In a final stab at relevance, the law suggests that an administration provide the above-referenced information at least two weeks in advance of discussions in person; an instruction that has been utterly disregarded by this president.
Two weeks before the start of fiscal 2019 Secretary of State Mike Pompeo inadvertently leaked, in a statement made on Sept. 17, 2018, that the U.S. would admit only 30,000 refugees — down from 45,000 the previous year.
The stated purpose was to process the “massive backlog of cases” in immigration court, which jumped to nearly 950,000 cases in 2019. To be clear, refugee admissions are handled by the United Nations Refugee Agency and do not (for the most part) contribute to our immigration backlogs.
In response to the announcement — which apparently came as a surprise to Senate Judiciary Committee Chairman and Chuck Grassley (R-Iowa) and Ranking Member Dianne Feinstein (D-Calf.) — Congress denounced the “eleventh-hour meeting” and expressed their frustration over hearing the announcement in the press, despite repeated requests to meet with administration officials throughout August.
The resultant hearing on refugee admissions occurred in mid-October, well after the start of the fiscal year and after the final determination was published.
A review of similar presidential determinations under the Bush and Obama administrations point to ongoing consultations, and at least a nod towards following procedure.
All refugee determinations — with one exception following the 9/11 attacks — included an “unallocated reserve” the State Department was authorized to use after notifying Congress of the additional resettlement need. There has been no mention of unallocated reserves or congressional notification in President Trump’s last two years.
At best, the Trump administration is neglecting the legal requirement to appropriately consult with Congress. At worst, it is purposefully disregarding a clear check on executive authority to push an agenda driven by the need to maintain political control, with no regard for the rule of law.
Requiring the president to appropriately consult with Congress for refugee admissions each year is not a courtesy, but a legally binding process that must be followed to ensure an adequate justification for a refugee cap is provided.
Kristie De Peña is the director of immigration and senior counsel with the Niskanen Center. Judith Teruya is a Master of Public Policy student at the University of California Irvine also contributed to this article.