About one year ago, on World Refugee Day, then-presidential candidate Joe Biden committed to increasing the annual number of refugees admitted to the United States to 125,000 and declared his intent to “further raise it over time commensurate with our responsibility, our values, and the unprecedented global need.” 

In February 2021, President Biden announced that the United States would accept up to 62,500 refugees in the current fiscal year, up from the cap of 15,000 set by his predecessor, Donald Trump. The administration held a mid-year consultation with Congress — as required by law — and presented a report on its plans. 

But in April, the administration reneged on its commitment and returned to the 15,000 cap. The administration cited capacity limits in the resettlement system after years of Trump policies, but critics speculated the move was driven by a desire to appease immigration skeptics amid an increase in asylum applicants arriving at the southern border. This time around, the administration did not consult Congress.

The reversal set off a firestorm of criticism not only from immigration advocates but also from congressional Democrats, including Senate Judiciary Chair Dick Durbin, and the chastened administration quickly went back to the 62,500 number.

The Biden administration could have easily avoided this fumble by following the law and simply consulting with Congress before announcing a policy change.

The 1980 Refugee Act requires the administration to meet with members of the House and Senate Judiciary Committees to consult on refugee admissions, and the law provides guidelines for the dialogue. Under the law, the president makes the final call on how many refugees to admit, but congressional input should inform that decision. In addition to consultations around the annual refugee ceiling, the law calls for “periodic discussions” between the administration and members of Congress to discuss “changes in the worldwide refugee situation, the progress of refugee admissions, and the possible need for adjustments in the allocation of admissions among refugees.” 

However, the refugee consultation process has been run roughshod over by at least the previous four presidents, and it is long past due for changes. Restoring it would ensure stability in the presidential determination of refugee admissions, preventing the whiplash of the past year. 

Last year, the Niskanen Center proposed modifications to the refugee consultation process including starting earlier, requiring a public hearing, and involving more committees. Further, Congress needs to reaffirm the statutory requirements in the 1980 Refugee Act. 

1. The consultation process needs to start earlier.

In previous years, the consultation process regularly began in September, with the end of the fiscal year less than a month away. 

Niskanen’s Idean Salehyan and Larry Yungk point out that the law requires the administration “to provide the annual Report to Congress on Refugee Admissions at least two weeks in advance of consultations.” The law then requires the consultations between the president and Congress “to take place before the start of the fiscal year.” So, when the conversations start in the middle of September, there simply is not enough time to adequately consult by October 1, the start of the federal fiscal year. 

Significantly moving the process up would allow for Congress and the president to engage in meaningful dialogue. For example, the administration could provide the annual report in July with an August deadline for an initial consultation, allowing for back-and-forth dialogue before the final deadline. 

Further, Salehyan and Yungk suggest a pre-consultation process among “persons designated by their departments to present the administration’s plan.” This process would eliminate the internal flipping seen in the Biden administration’s refugee determination. 

2. The Judiciary Committees should hold a public hearing.

The House and Senate Judiciary Committees oversee the presidential determination of refugees. Closed-door conversations between the administration and Congress provide a space for controversial issues to be worked through without the kind of public scrutiny that can lead to unhelpful politicking. However, transparency in the determination of the refugee cap enables the public to understand the nation’s refugee priorities.  

To that end, the committees could hold a hearing that presents the rationale for the refugee cap and outlines the nation’s refugee priorities and the global refugee situation. 

3. Other committees should weigh in.

The House and Senate Judiciary committees participate in the refugee consultation process to exercise their jurisdiction over immigration issues. Nevertheless, refugee resettlement plays a role not only in immigration policy but in diplomacy and foreign policy as well. 

For this reason, committee jurisdiction over the refugee resettlement cap should include the House Foreign Affairs Committee and the Senate Foreign Relations Committee. 

4. Congress needs to reaffirm the 1980 Refugee Act.

The 1980 Refugee Act outlines the refugee consultation process with necessary timelines, oversight, and requirements. Congress should reiterate these statutory requirements with a resolution explaining that all administrations should follow the outlined consultation process, stressing the importance of deadlines. 

Years of press releases complaining about the process have not changed anything. Congress now needs to pass a formal resolution.  

Strengthening and following the process outlined by the 1980 Refugee Act would not only prevent mistakes like those made by the Biden administration, but respect Congress’ role in the process. The proposed changes will reestablish efficiency and maintain integrity for this process, which is critical not only for the United States’ immigration priorities but for its foreign policy and diplomacy.