Every September, the administration and Congress prepare for the refugee consultation process, a statutorily-required, formal discussion between the executive and the legislative branch over the new fiscal year’s refugee policy. Through this process, the president proposes a new refugee cap and justifies the country’s resettlement priorities. Congress, through the House and Senate Judiciary Committees, ensures accountability and oversight via a closed-door meeting with representatives of the president.
The exchange is enshrined in law — the 1980 Refugee Act — but in practice, the consultation process has languished. In particular, this administration seems to view the process as an afterthought. Consultation with Congress has been relegated to an “11th hour meeting to check a legal box,” according to a 2017 statement from Chuck Grassley (R-IA) and Dianne Feinstein (D-CA), leaders of the Senate Judiciary Committee.
This year it’s even worse. The refugee consultation for fiscal year 2021 has not occurred although we are seven days into the new fiscal year. Hill sources have informed Niskanen the formal consultation has not even been scheduled yet.
The solution to the consultation crisis isn’t more strongly-worded press releases from the judiciary committees. The answer is reimagining the consultation process to ensure that the executive takes its engagement with Congress seriously. Refugee decisions ultimately belong to the executive, but are deliberately subject to rigorous congressional scrutiny and both closed-door and public questioning.
This post will explore how to add teeth to the refugee consultation process to improve decision-making around refugee resettlement moving forward.
The existing consultation process
Consultation is a codified exchange between the president and the judiciary committees of the House and Senate to determine the appropriate number of refugees to be resettled the following fiscal year. The president is granted authority to determine the number of refugees to be resettled, but this comes with the responsibility to take the following actions before the start of each fiscal year:
- Have formal discussions with officials regarding the worldwide refugee situation;
- Two weeks before these formal discussions, designate Cabinet-level representatives who should provide information on the current global refugee situation, the population of refugees seeking admission, the proposed plan and estimated cost for their resettlement, the extent to which other countries will assist in resettlement, and the anticipated social, economic, demographic, and foreign policy impact of admission to the United States;
- Formally discuss the reasons why the proposed admission of refugees is justified by humanitarian concerns or is in the national interest;
- Report to the judiciary committees of the House and Senate on the number of refugees currently in need of resettlement, and the anticipated allocation of refugee admissions;
- Make records of these discussions publicly available and have them printed in the Congressional Record;
- Hold a hearing to review the proposed presidential determination.
The consultation process is critical for establishing accurate and transparent policy regarding refugee resettlement. Whether you believe the U.S. should resettle more or fewer refugees, the consultation process helps facilitate the exchange of accurate information regarding refugee resettlement and promotes transparency. It also ensures that elected officials represent the American people’s voices on national resettlement issues.
Envisioning a revamped consultation process
What must Congress do to hold the president accountable and reestablish its authority on this issue? How can legislators take action to make sure that the refugee consultation process is observed? Here are four ideas.
- Start consultation earlier in the fiscal year
The consultation process shouldn’t be a last-minute, toothless exercise. To have any legitimacy, the consultation process should start earlier than September, leaving the appropriate time to fulfill the legal obligations outlined above. Considering Congress is mostly in recess in August, this means moving up the initial consultation phase to July to facilitate proper discussions.
To do this, instead of requiring the administration to submit materials two weeks before in-person consultation, the administration should be directed to submit materials two months before the in-person consultation. A first round of materials and a staff briefing between the judiciary committees and the State Department would be required to occur in July or before August recess. This would trigger the information flow earlier in the process and give judiciary staff more time to prepare for the September in-person consultation. The administration would not be expected to have finalized materials but to begin the process earlier to ensure Congress is looped into the refugee conditions and considerations at the time.
Niskanen’s Idean Salehyan and Larry Yungk recently observed, “consultations occur after the administration’s plans are set in place already, thus preventing any meaningful revisions and interbranch dialogue.” Consultation must be moved up in order to ensure Congress has a legitimate role in shaping and influencing the resettlement plan.
- Require a public hearing
Transparency is crucial in a democracy, but closed-door deliberations and discussions can offer an opportunity to expeditiously tackle challenging and controversial issues. The ability to negotiate and compromise often increases when lawmakers are less concerned about messy public politicking. Closed-door consultation allows the administration and Congress to share sensitive information about refugee situations and national security assessments in an appropriate space. Therefore, the current closed-door consultation between the secretary of state and the judiciary committees should continue to occur each September.
However, the House and Senate Judiciary Committees should also hold a joint public hearing in the last month in the fiscal year to allow a public forum for discussion and debate over the refugee resettlement priorities. Lawmakers could call government officials, heads of resettlement NGOs, representatives of the UN refugee agency, and other stakeholders to participate.
To fully understand refugees’ impact to inform a presidential determination, the refugee consultation should include the perspectives of previously-resettled refugees, localities, and businesses that rely on refugees as a critical component of their workforce. The American people should see those representing the administration and other entities discuss these complex issues and defend their decisions and assertions.
Another idea worth considering is a six-month check-in hearing for the judiciary committees. A hearing at the fiscal year’s six-month mark can ensure accountability and would ensure the administration is sticking to its plans and has the resources needed. For example, the significant suspension of resettlement this year due to COVID-19 could have be explained in detail in a hearing this year. A hearing at the six-month mark would better a system already lacking oversight.
- Elevate congressional input
The consultation process is Congress’ opportunity to provide input into the resettlement process and understand refugees’ impact on the U.S. economy and foreign policy. Yet, the quality of dialogue during the consultation process has been limited.
Judiciary committee members should provide a formal recommendation during the consultation process and make these recommendations available to the public. This should include a topline resettlement figure and priority categories, such as targets for refugee populations from certain countries. This will further clarify for the American people where lawmakers stand on the issue, but will also serve to aid in the creation of a new resettlement allotment.
Another option would be to give the chairs and ranking members of the House and Senate Judiciary Committees a 10 percent combined allotment to distribute to the resettlement categories they view as most important, influenced by their members’ formal recommendations. Given that the administration will submit materials including resettlement needs, existing pipeline-case information, and its predictions for the coming fiscal year, the four members of Congress can come up with an evidence-based decision on how to use their allotment.
For example, if the refugee cap is 50,000, the administration would leave 5,000 resettlement slots to be determined by the U.S. Congress. While 10 percent of the refugee ceiling may seem reasonable given how low it has been set in recent years, the same percentage of a higher ceiling may place too much power in the hands of a few and further politicize the process. Therefore, the 10 percent allotment would occur up to a given number to prevent politicization, say, 10,000 total slots. Moreover, the statute should indicate that the congressional allotment, if not used, rolls back into an unallocated reserve for the administration to utilize how it sees fit.
Often, in the 40-year modern history of the resettlement program, an administration has left an “unallocated reserve” when crafting the resettlement ceiling. As we have seen with this past year’s challenges, including a crackdown on Hong Kongers and worsening conditions for refugees in hot spots across the globe, it’s difficult to adequately determine all refugee needs at the outset of the fiscal year. The congressional allotment, if unused, could be treated either as an unallocated reserve the administration can tap into when something arises during the fiscal year or be designated for a specific population or category at the fiscal year’s outset.
- Expand the committees of jurisdiction
The judiciary committees have jurisdiction over immigration issues and, accordingly, are the committees engaged in consultation. However, refugee resettlement is a unique initiative: part immigration policy, part foreign policy and security, and part diplomacy. Therefore, the committees of jurisdiction should be expanded to include House Foreign Affairs and Senate Foreign Relations.
This will provide members focused on foreign affairs the opportunity to influence the resettlement system. As we have discussed before, U.S. resettlement is intimately tied to foreign policy and diplomacy. Adding these committees will further link the history of resettlement and foreign affairs to inform the current priorities for resettlement.
Requiring a more robust justification in private and public hearings in the president’s report to Congress on refugee resettlement is another step toward good governance. With the new committees, the administration would have to provide credible justifications for resettling refugees due to humanitarian concerns, foreign policy benefits, or other reasons. Deep cuts or large increases would have to be justified aggressively.
The presidency is not above the law, nor beyond checks and balances. Congress must take action to ensure that the refugee consultation process is followed and that it can enrich dialogue on U.S. refugee resettlement. President Trump’s disregard for the refugee consultation process is part of a larger picture of decreasing congressional authority and presidential disregard for restrictions on the executive. While President Trump’s disregard for the consultation process is extreme, previous presidents have also merely paid lip service to Congress on the issue.
Therefore, Congress must pass a bipartisan, process-oriented bill to reassert its authority and create the foundation on which robust dialogue and well-informed debate can flourish.
Refugee resettlement policy is complex and controversial. To ensure the best decision-making, we need more informed voices in the room. These proposals would put the U.S. resettlement system on firm footing, creating mechanisms that foster dialogue between stakeholders. Such reforms are process, not policy, focused. Creating simple, clear rules for congressional and executive discussions would give the American people more voice in the system and create a better, more responsive resettlement apparatus in the future.