The Thomas More Law Center announced on Wednesday that nationally recognized appellate lawyer John Burch will represent its client, the Tennessee General Assembly, in next week’s appeal of a lower federal court’s ruling to the U.S. Sixth Circuit Court of Appeals.
“John’s integrity, outstanding litigation skills, and impressive record on appeals prompted me to ask him to join our fight. I can’t think of anyone more qualified to represent Tennessee and the constitutional principles involved in this case,” Richard Thompson, president and chief counsel of the Thomas More Law Center (TMLC) said in a statement.
According to the statement, “The Thomas More Law Center was retained by the Tennessee General Assembly in March 2017 to file a first-of-its-kind Tenth Amendment lawsuit challenging the constitutionality of the federal refugee resettlement program.”
The federal government has violated state sovereignty by forcing Tennessee to continue paying for the program after Tennessee opted out and exercised its right not to participate. TMLC is appealing after a federal district court judge dismissed the case. The Law Center is representing Tennessee without charge.
Mr. Bursch, a former Michigan state solicitor general and past chair of the American Bar Association’s Council of Appellate Lawyers, has an impressive client list ranging from Fortune 500 companies and foreign and domestic governments, to top public officials and industry associations in high-profile cases. His cases frequently involve pressing political and social issues, and five had at least $1 billion at stake.
He has argued 11 U.S. Supreme Court cases and obtained summary reversal on three more, compiling a Supreme Court merits record of 10-2-2. He has also argued 30 cases in state supreme courts, and dozens more in federal and state appellate courts across the country. A recent study included John on its “veritable who’s who of Supreme Court litigators” list.
“The case could answer the questions of whether or not the federal government can force a state to pay for a federal program which the state does not want, and how and when the U.S. Constitution limits federal encroachment on state sovereignty,” Don Barnett, a fellow at the Center of Immigration Studies, told told Breitbart News in an exclusive interview.
“Responsibility for the cost of the U.S. refugee resettlement program has been an issue since passage of the 1980 Refugee Resettlement Act,” Barnett said, adding:
The Refugee Act intended to insulate states from program costs. The bill’s Senate sponsor, Edward Kennedy, noted the program would “assure full and adequate federal support for refugee resettlement programs by authorizing permanent funding for state, local and volunteer agency projects.”
The Act intended that “[s]tate and local agencies … not be taxed for programs they did not initiate and for which they were not responsible”. As passed, the Act intended for the federal government alone to fund its own program and authorized federal reimbursement to the states for three years of the state’s portion of Medicaid, TANF, SSI, etc. paid on behalf of each refugee resettled in the state. (Refugees, along with some other humanitarian immigrant categories are eligible for all welfare upon arrival on the same basis as U.S. citizens.)
The ongoing cost for support of refugees on public assistance is the biggest portion of the overall cost of the program. States bear a portion of the cost for ongoing welfare. This federal support for state welfare outlays was gradually scaled back and by 1991 was completely gone.
In addition to covering welfare outlays by the state, the program promised states 3 years of cash payments, known as Refugee Cash Assistance, and medical insurance for those refugees who were not eligible for means tested cash welfare or Medicaid.
This support was also scaled back by Congress and by 1991 the promised 3 years of cash and medical support had been reduced to eight months – a fraction of the support needed to ensure economic self-sufficiency. One solution was simply to change the definition of “self-sufficiency”, a statutory and regulatory measure of program success. Today under HHS’s novel definition a refugee can be in public housing, receiving Medicaid, food stamps, cash from SSI, etc. and still be considered “self-sufficient” by the government. Only TANF or Refugee Cash Assistance causes a refugee to lose the “self-sufficient” designation.
Breitbart News has reported on this case extensively since the Tennessee General Assembly voted to sue the federal government to stop primary resettlement of refugees on Tenth Amendment grounds in April 2016.
On Tuesday, the Tennessee General Assembly declared it will sue the federal government over its refugee resettlement program on Tenth Amendment grounds. The State Senate passed a resolution authorizing that lawsuit in a 29 to 4 vote one day after it passed the Tennessee House by a 69 to 25 margin.
“Today we struck a blow for Liberty by finally adopting SJR467,” State Senator Mark Norris (R-Collierville), the co-sponsor of the resolution who shepherded it through the State Senate, tells Breitbart News.
“The General Assembly clearly understands the importance of public safety and state sovereignty as demonstrated by the overwhelming support of this Resolution for which we are thankful. The Syrian surge heightens our sense of urgency to get this properly before the courts, and we urge the Attorney General to act without delay,” Norris adds.
The Tennessee General Assembly hired the TMLC to represent it in the litigation on March 2017, and in August 2017, the case was filed in a federal district court.
Surprisingly to many supporters of the lawsuit who believed the Trump administration might settle the case in favor of Tennessee prior to a court decision, the Department of Justice, under the leadership of former Attorney General Jeff Sessions, defended the case vigorously.
In March, the federal district court dismissed the case, as Reuters reported:
Tennessee accused the government of invading its sovereignty by requiring it to provide Medicaid benefits to refugees, or else risk losing nearly $7 billion of Medicaid funds annually, equal to about 20 percent of its state budget, if it refused.
It said this violated the 10th Amendment, which limits U.S. government powers to those delegated in the Constitution. Tennessee was the first state to sue on that basis.
But in a 43-page decision, Chief Judge S. Thomas Anderson of the federal court in Jackson, Tennessee said the state lacked legal standing to sue.
Barnett explained the curious nature of that decision in his interview with Breitbart News.
Barnett told Breitbart News:
After the Obama administration raised the annual refugee quota to 110,000 for FY 2016 Maine, Texas, New Jersey and Kansas asked to withdraw from the program. Alabama, Alaska, Kentucky, Louisiana, Nevada and Tennessee state governments had withdrawn from the program earlier. These states found that resettlement continued as the federal government merely continued the program with private federal contractors. A total of 25 states sued the federal government in an attempt to halt the planned large-scale Syrian resettlement, some citing the lack of legally required consultation by the feds with states targeted for resettlement.
“The Tennessee case is the only refugee resettlement lawsuit based on the 10th amendment and is the only state resettlement lawsuit still active today,” Barnett added.
Substantial program costs of this federal program have been purposely shifted to state taxpayers over the years. In effect, the federal government is commandeering state taxpayer money for its own purposes, clearly a power that was not delegated to the federal government by the constitution. In fact, the Tennessee lawsuit argues that such dragooning of state resources by the federal government is forbidden by the 10th amendment.
“Objections to intrusive federal power have been around since the beginning of the republic. Federal assertion of authority over how a state spends state taxes is an abuse of the powers delegated to the federal government vis-a-vis state governments. Let’s hope the appeals court thoroughly airs this test of 10th amendment guarantees against federal overreach,” Barnett concluded.