On Monday, the U.S. Court of Appeals for the 7th Circuit blocked Indiana Gov. Mike Pence’s order forbidding state agencies from providing social services to Syrian refugees. Pence, now Donald Trump’s running mate, attempted to drive Syrian refugees out of his state in 2015 by issuing the order and has boasted that his executive actions align neatly with Trump’s extreme anti-refugee stance. But an ideologically diverse panel of 7th Circuit judges concluded that Pence’s order was illegal and cannot be lawfully enforced, affirming an earlier injunction issued by a district court.
In a short but searing majority opinion penned by Judge Richard Posner, the court concluded that Pence’s actions obviously contravene federal law. The Refugee Act of 1980 provides states with funds to assist refugees, money that Indiana gladly accepts. But a provision of the act bars any state from using these funds on the basis of nationality. Indiana explicitly declared that it wished to deprive Syrian refugees of social services, an obvious form of discrimination on the basis of their nationality. Thus, Indiana’s anti-Syrian policy cannot stand under the Refugee Act.
Pence had argued that his order did not discriminate against Syrian refugees because of their nationality but because he believes they pose a heightened safety risk to Indianans. Posner succinctly demolishes this sophistry with just a few sentences:
That’s the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.
Posner notes that if Indiana is really that terrified of Syrian refugees, it could simply “withdraw from the refugee assistance program,” as several other states have done. He also notes that if Indiana did go that route, a different federal law allows the government to establish an alternative program through which to distribute aid to refugees.
In other words, there is essentially no way for Indiana to legally discriminate against Syrian refugees—unless federal lawmakers revise the Refugee Act to explicitly permit discrimination on the basis of national origin. With the judicial rejection of this blatantly illegal action, Pence’s attempts to bolster his Trumpian anti-immigrant track record are beginning to look a lot more like a series of empty political gestures.