Bush-Appointed Judge To Texas: No, You Can’t Halt Resettlement Of Syrian Refugees

by IAN MILLHISER –

Mom and kid refugee

Last week, Texas Attorney General Ken Paxton (R) filed a lawsuit seeking to halt “any and all activities of the [United States] regarding placement of Syrian refugees in Texas,” at least until the Obama administration complies with a list of demands made by the state. Among other things, they sought a temporary order suspending Syrian refugee resettlement until Judge David Godbey, a George W. Bush appointee, had more time to consider the case. On Wednesday, Godbey ruled on this request for temporary relief. It did not go so well for Paxton.

There are numerous problems with Paxton’s suit against the federal government. Among other things, he relies on provisions of the law that are not enforceable through litigation. He cites introductory language that merely lays out some of the federal Refugee Act’s overarching purposes without actually imposing specific obligations on the federal government. And, to the extent that Paxton actually identifies legal obligations that may be binding on the Obama administration, he appears to concede that the administration has complied with these obligations.

Godbey’s order rejecting Texas’s bid to halt refugee immigration into Texas is short — it is only three pages long and the third page consists entirely of Godbey’s signature. Nevertheless, Godbey manages to convey a dismissive view of this lawsuit in just a few short paragraphs. “The Court finds that the evidence before it is largely speculative hearsay,” Godbey writes in a paragraph explaining just how much the state asks the court to rely on sweeping generalizations.

At this early stage of the litigation, Texas must demonstrate “a substantial threat of immediate injury.” They claim that this threat exists because some of the refugees might engage in terrorist activity if they are allowed in the United States (in reality, the possibility that any of the refugees relocating to Texas will commit and act of terror is vanishingly small). Yet, as Godbey explains, Texas “has failed to show by competent evidence that any terrorists actually have infiltrated the refugee program, much less that these particular refugees are terrorists intent on causing harm.” Mere speculation that a particular group of immigrants may intend to hurt Texans does not establish a “substantial threat” of anything.

Paxton could press forward with this lawsuit in Godbey’s court, but the judge strongly implies in a footnote that Paxton’s arguments will not receive a favorable reception. “The fact that this Court is required to assess the risk posed by a group of Syrian refugees illustrates one of the problems with this case,” Judge Godbey writes. “The Court has no institutional competency in assessing the risk posed by refugees,” he adds, before dropping an anvil on Paxton’s legal theory. Assessing terrorist threats, Godbey writes, “is precisely the sort of question that is, as a general matter, committed to the discretion of the executive branch of the federal government, not to a district court.”

At the end of the day, the state of Texas is wading into two areas of the law, immigration and national security policy, where states have little, if any, authority to second guess the federal government. Godbey’s decisions appeal to the very conservative United States Court of Appeals for the Fifth Circuit, so there is an off chance that they could draw a particularly partisan panel on appeal. If appellate judges pay attention to the law, however, Judge Godbey has already shown them how to deal with this case.

 

Reprinted with permission from Think Progress, a branch of The Center for American Progress