In 1980, Congress passed legislation that gave the president the responsibility of determining how many refugees would be admitted each fiscal year, and how that number would be split among world regions, after appropriate consultation with the Congress. In the coming weeks, the Trump administration should provide in-person, cabinet-level consultation with the House and Senate Judiciary Committees before coming to a final decision on what the FY 2021 refugee resettlement plan will look like.
All available evidence suggests the Trump administration will pay little attention to the letter of the law. In fact, the administration has routinely violated these statutory requirements in recent years. Yet, with an all-time low number of refugees resettled in 2020 — about 9,100 as of this writing — and widespread changes to resettlement in response to COVID-19, the administration ought to proceed with a robust consultation process. The refugee consultation process is not a mere procedural formality; it is the only opportunity for the administration to justify the proposed number and engage productively with Congress.
Congress must demand compliance and hold the administration accountable for violating the law, eschewing congressional oversight, and systematically downgrading the country’s resettlement system.
For years, the lack of consultation has raised alarms for the chairs and ranking members of the judiciary committees, the refugee resettlement agencies, and conservative think tanks.
In 2017, Sens. Chuck Grassley (Iowa) and Dianne Feinstein (Cal.), the top Republican and Democrat on the Senate Judiciary Committee, complained they heard of the new refugee ceiling through press reports before the consultation process even occurred. In a statement, they wrote, “Congress and the law require real engagement on this important subject. An eleventh-hour meeting to check a legal box is not sufficient.”
In 2018, Grassley and Feinstein wrote the consultation process was becoming “effectively meaningless.”
In 2019, Feinstein joined the new Republican Judiciary chair, South Carolina’s Lindsey Graham, to write, “the executive branch simply cannot continue to repeat these mistakes and must take steps to ensure that the consultation process is both consistent with federal law and meaningful.”
Even the conservative Heritage Foundation agrees, writing, “Rather than continue to give the executive branch all the power in setting refugee quotas, Congress should reclaim some of its authority.”
As does Refugee Council USA, the umbrella organization representing all the institutions that resettle refugees across the country. In 2018, its leader declared, “The Administration’s disregard for refugees, Congress and the American people is reflected in its failure to take seriously the importance of Congress’s role in the refugee admissions determination process.”
President Trump has overhauled U.S. refugee policy during his time in office, reversing the decades-long bipartisan agreement on the issue. With massive changes coming last year and a once-in-a-century pandemic wreaking havoc on the immigration system, this year’s consultation process is more important than ever. A robust refugee consultation process is sorely needed this year. Here are four issues it should cover:.
1) New developments about persecution worldwide must be addressed in the consultation and the FY21 presidential determination. The Chinese Communist Party’s brutal persecution of Uighurs and their crackdown on Hong Kongers demand a response from the U.S. A Uighur Priority 2 designation could be crafted, which the State Department uses to resettle “groups of special concern” instead of individual refugee claims.
Moreover, the State Department can look to bicameral, bipartisan bills in Congress that look to shield Hong Kongers by offering them access to the U.S. resettlement program.
2) The implications of COVID-19 are massive. The pandemic brought the suspension of the U.S. resettlement system from March to July, aside from emergency cases. About 800 refugees were resettled during that suspension.
While some travel restrictions were (arguably) justified and came from the International Organization for Migration and the UNHCR, the administration needs to thoroughly inform Congress about what changes were made to the resettlement system, how the pandemic made it reassess resettlement plans, and how refugees are currently being resettled while ensuring public health. An entire hearing could be premised on how COVID-19 has altered the resettlement system.
3) Even before COVID-19, this administration has reduced refugee resettlement to record lows. The last four years have seen more change to the resettlement system than at any time in decades. The domestic and international infrastructure used to resettle refugees has been hollowed out.
The administration must continue to justify its considerable reductions in resettlement year after year. It claimed that it needed to update its security screening process when it initiated the original travel ban. Still, now that the administration has had three years to update the program, there is less resettlement than ever before. The administration claimed it needed to use resources for asylum cases and couldn’t resettle more refugees, but the CDC order expelling migrants that has been in effect since the start of the pandemic would theoretically free up government resources.
The administration must explain why resettlement continues to drop even when its previous objections have become moot — the goalposts are continually moving for refugees.
And while U.S. Citizenship and Immigration Services, the agency that administers the country’s legal immigration system, has dropped plans to furlough 75 percent of its staff, the agency is warning of worsening backlogs, reduced contracts, and slower processing times. How these impacts will affect the resettlement system should be discussed.
4) Most importantly, the administration must update Congress on the structural changes to the resettlement program made in 2019. As I explained with my colleague Kristie De Peña, the administration made considerable changes to the program last year. It should report on the successes or failures of those changes as it sees them.
First, the president signed an executive order giving states and localities an option to veto resettlement. All but one state agreed to resettle — including many led by GOP governors — before a court blocked the rule from being implemented.
Second, the administration abolished regional allotments and created new categories in their place. RCUSA reports that through three quarters of FY20, just 90 Iraqis have been resettled in a category for 4,000. The Northern Triangle category was allotted 1,500 refugee admission slots, but less than 300 have been resettled. And the miscellaneous category, the largest category comprising 7,500 slots, has seen just 3,800 refugees resettled.
The category dedicated to refugees fleeing religious persecution is the most filled. However, the overall admissions ceiling is so low that even meeting the category quota would still leave the U.S. at a record low for rescuing those on the run from religious persecution.
In a Wall Street Journal op-ed, former Republican Congressman Reid Ribble cites new research that finds that from the 50 countries where Christians face the most severe oppression, the U.S. resettled about 18,500 Christian refugees in 2015. Midway through 2020, the U.S. had resettled fewer than 950.
A fair and legal consultation process isn’t that difficult to identify. The statute lays out the requirements that would allow Congress to review and comment on the administration’s plans and conduct oversight. Documents are to be provided at least two weeks ahead of time so members and staff can prepare the discussion. The consultation requires an in-person consultation that theoretically could be conducted via video conference this year. And it must feature a cabinet-level official to represent the president. Consultation is supposed to be a back-and-forth, not the administration riding in to inform Congress of a predetermined figure.
If it were interested in truly reasserting its authority, Congress could (read: should) pass reforms to the 1980 Refugee Act that enhance its oversight authority on the annual presidential determinations. It could pass legislation requiring consultation not just annually but quarterly, to remain up to date on the administration’s refugee policies and changing global conditions. It could create a special refugee-admissions allotment category for congressional priorities designated by Judiciary chairs and ranking members. It could expand the committees included in the consultation, given the program’s implications on foreign affairs and diplomacy.
The Heritage Foundation’s David Inserra proposes allowing the president to set the refugee ceiling within a range determined by Congress. He asks, “Why not leave the president free to set refugee levels within this historical range but require that any cap outside this range be submitted to Congress for approval?”
President Trump is not the first president to violate the requirements of the consultation process. But his administration has dismissed Congress and the law more than any since the consultation process was created four decades ago. The executive branch has rolled its eyes at the consultation process, and Congress has done little to reassert its role in refugee policy.
Congress must demand a thoughtful, robust consultation process this September. The refugee program has never been more vulnerable than it is right now. Congress is the only body that can hold the administration accountable for its horrendous track record on refugee issues, and it should take that job seriously this year.