United States District Court, D. Maryland
J. MESSITTE UNITED STAGES DISTRICT JUDGE
Inc., Church World Service, Inc., and Lutheran Immigration
and Refugee Service, Inc. have sued President Donald Trump
and three of his cabinet secretaries, seeking preliminary and
permanent injunctive relief. They challenge Executive Order
13888, 84 Fed. Reg. 52, 355 (Sept. 26, 2019) (Order), that
they allege would give individual U.S. States and Local
Governments the power to veto, by refusing to consent to, the
resettlement in their respective jurisdictions of certain
refugees from around the world. Plaintiffs are three of nine
designated "Resettlement Agencies" that enter into
annual agreements with the Federal Government to provide
services to these refugees under the current refugee
resettlement program of this country, as described more fully
infra. Defendants, in their official capacities, are the
President, Secretary of State Michael Pompeo, Secretary of
Health and Human Services Alex Azar II, and Acting Secretary
of Homeland Security Chad Wolf, all of whom have developed
and/or are responsible for implementing the Order.
case is at the Preliminary Injunction phase.
represented by the U.S. Department of Justice, have filed an
Opposition to the Motion for Preliminary Injunction to which
Plaintiffs have replied. Numerous entities, with leave of
Court, have filed briefs as amici curiae. Oral argument by
counsel for the parties has been held.
reasons that follow, the Court GRANTS the
Motion for Preliminary Injunction, ECF No. 18, and reinstates
the status quo immediately preceding the issuance of the
proclamation of the Order on September 26, 2019, pending
further order of the Court.
Who is a Refugee?
of critical importance to understand who a
"refugee" is in the context of this case. For
present purposes, a "refugee" has been defined
under U.S. law, in pertinent part, as: "any person who
is outside any country of such person's nationality or,
in the case of a person having no nationality, is outside any
country in which such person last habitually resided, and who
is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of,
that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion". 8 U.S.C. § 1101(a)(42). See also
8 U.S.C. § 1522. This definition traces back to the
definition of "refugee" found in the Statute of the
Office of the United Nations High Commission for Refugees
(UNHCR)  and the definition in the 1951 Convention
Relating to the Status of Refugees.
1967 Refugee Protocol incorporated the 1951 Convention's
well-founded fear definition in its first article... [such
that] [t]he United States owes certain obligations to
refugees under international law by virtue of its
ratification of the 1967 Protocol, and the [UNHCR], speaking
for the international community, is the chief guarantor of
these obligations". In 1980, in order to bring U.S. law
into conformity with the Protocol, Congress enacted the
Refugee Act of 1980. In its declaration of policies and
objectives prefacing the Act, Congress:
(a) ... declares that it is the historic policy of the United
States to respond to the urgent needs of persons subject to
persecution in their homelands, including, where appropriate,
humanitarian assistance for their care and maintenance in
asylum areas, efforts to promote opportunities for
resettlement or voluntary repatriation, aid for necessary
transportation and processing, admission to this country of
refugees of special humanitarian concern to the United
States, and transitional assistance to refugees in the United
States. The Congress further declares that it is the policy
of the United States to encourage all nations to provide
assistance and resettlement opportunities to refugees to the
fullest extent possible, (b) The objectives of this Act are
to provide a permanent and systematic procedure for the
admission to this country of refugees of special humanitarian
concern to the United States, and to provide comprehensive
and uniform provisions for the effective resettlement and
absorption of those refugees who are admitted.
Act of 1980, Pub. L. No. 96-212 § 101, 94 Stat. 102.
then, in terms of the present case, comprise a special
category of persons.
refugees do not apply for resettlement directly to the
Country they hope to go to.
cases, the UNHCR begins by identifying vulnerable individuals
(often in conjunction with a U.S. embassy). A number of
countries, including the United States, as signatories to the
1967 Protocol, have agreed to cooperate in determining which
refugees designated by the UNHCR will be admitted for
resettlement. Canada now accepts a greater number of refugees
for resettlement under the Convention and Protocol than does
the U.S., which historically has accepted the most.
See U.N. High Commissioner on Refugees, Global
Trends: Forced Displacement in 2018 (2019) at 32.
December 31, 2019, the Department of State reports that 30,
000 refugees were resettled in the United States in Fiscal
Year 2019. See Dep't of State, Bureau of
Population, Refugees, and Migration, Refugee Processing
Center, PRM Admissions Graph Dec. 31, 2019 (available at
https://www.wrapsnet.org /admissions-and-arrivals/) (last
visited Jan. 13, 2020). The main countries of origin of
refugees who settled in the U.S. in FY 2018 were the
Democratic Republic of Congo, Myanmar, and Ukraine. Dep't
of State, Dep't of Homeland Security & Dep't of
Health and Hum. Servs., Report to Congress: Proposed Refugee
Admissions for Fiscal Year 2020 (2019) at 25. The top U.S.
States accepting refugee resettlement in FY 2018 were Texas,
Washington, Ohio, California, New York, and Arizona.
Id. at 27.
A Brief Summary of Resettlement History
Brown and Todd Scribner in the Journal of Migration and Human
Security briefly summarize the history of the refugee
settlement system in the United States:
World War II caused the displacement of millions of people
throughout Europe. In response, the United States initiated a
public-private partnership that assisted in the resettlement
of hundreds of thousands of the region's displaced
persons. For nearly 40 years after the War, the U.S.
commitment to refugee resettlement played out in an ad
hoc fashion as it responded to emerging crises in
different ways. During this period the government's
involvement with resettlement became gradually intertwined
with that of nongovernmental resettlement agencies, which
came to play an increasingly vital role in the resettlement
process. The budding relationship that began in the middle
decades of the twentieth century set the foundation for an
expansive and dynamic public-private partnership that
continues to this day. The Refugee Act of 1980 solidified the
relationship between resettlement agencies and the federal
government, established political asylum in U.S. law, and
created the refugee resettlement program and a series of
assistance programs to help refugees transition to life in
the United States. This legislation marked a decisive turning
point in the field of refugee resettlement.
Brown and Todd Scribner, Unfulfilled Promises, Future
Possibilities: The Refugee Resettlement System in
the United States, 2 J. Migration and Hum. Security, No.
2, 101, 101 (2014).
The Resettlement Process in the U.S.
the UNHCR identifies and recommends a potential refugee for
resettlement in the U.S., the U.S. undertakes its own vetting
process (including, for example, administering medical tests
and checking global fingerprint databases). The President,
after consultation with Congress, determines the numerical
ceiling for refugees each year (known as the
"Presidential Determination"). See 8
U.S.C. §1157(a)(2). For Fiscal Year 2020, for example,
President Trump has set the ceiling at 18, 000, see
Presidential Determination on Refugee Admissions for Fiscal
Year 2020, 84 Fed. Reg. 65, 903 (Nov. 1, 2019), as compared
to a ceiling of 110, 000 set by President Obama in 2016,
see Presidential Determination on Refugee Admissions
for Fiscal Year 2017, 81 Fed. Reg. 70, 315 (Sept. 28, 2016).
Eligible refugees are then interviewed by officers of the
U.S. Citizenship and Immigration Services (USCIS), which is
part of the Department of Homeland Security (DHS), and if
deemed admissible, are resettled through what is known as the
Refugee Admissions Program (RAP), which is jointly
administered by a division within the Department of State
(DOS) and the Department of Health and Human Services (HHS).
See U.S. Citizenship and Immigration Services,
Refugee Screening Fact Sheet (2018) (available at
Sheet.pdf). See also Exodus Refugee Immigration, Inc. v.
Pence, 838 F.3d 902, 903 (7th Cir. 2016)
(Posner, J.) ("all persons seeking to enter the United
States as refugees are required to undergo multiple layers of
screening by the federal government, following screening by
the United Nations High Commissioner for Refugees, before
they can be admitted to the United States. The process can
take up to two years").
DHS conditionally approves an applicant for resettlement, the
prospective refugee receives "sponsorship
assurance" from one of the nine Resettlement Agencies
that has entered into a cooperative agreement with the State
Department to assist in the resettlement of refugees.
"sponsorship assurance" must be received before the
prospective refugee may travel to the U.S. See ECF
No. 1 ¶ 40. The Resettlement Agency then assumes
responsibility for placing the prospective refugee with one
of its affiliates, and commences to provide services to the
candidate, which are intended to help him or her obtain
self-sufficiency. See Id. ¶ 41. In the past, it
has taken between 18 to 24 months from the time of the
individual's application for admission to actual
resettlement, although more recently it has reportedly taken
longer. See Id. ¶ 45.
its Reception and Placement Program the State Department
provides funding up to a certain amount to the Resettlement
Agencies for each refugee they resettle (e.g. to pay for
housing, furnishings, food, clothing and the like).
See 8 U.S.C. § 1522(b)(1). This is intended to
cover the first 90 days a refugee is in the U.S. Thereafter,
the Office of Refugee Resettlement (ORR), which is within
HHS, reimburses the States for paying for longer-term
assistance, including social services, as well as medical
assistance, and even cash. See ECF No. 1 ¶
¶ 58-59; 8 U.S.C. § 1521.
pursuant to 8 U.S.C. § 1522(a) (Appendix I hereto), the
Federal resettlement authorities and the Resettlement
Agencies have been directed to meet and consult with State
and Local Governments in order to establish policies and
strategies for the placement and resettlement of the
refugees, in the course of which, acting in concert, they are
directed to take into account several factors, including the
availability of employment opportunities, affordable housing,
and public and private resources in the destination (e.g.
educational, healthcare, and mental health
refugee is deemed acceptable for resettlement, the State
Department assigns his or her case to one of nine
Resettlement Agencies (Plaintiffs being three of the nine),
which help the refugee integrate into his or her new U.S.
The Challenged Executive Order
September 26, 2019, President Trump issued Executive Order
13888 proposing to modify what from at least the mid-1980s to
date has been the heart of resettlement practice. Instead of
merely giving States and Local Governments an active voice
over whether refugees will be resettled in their
jurisdictions, the Order provides that the Federal Government
"should resettle refugees only in those jurisdictions in
which both the State and local governments have consented to
receive refugees under the Department of State's
Reception and Placement Program". Order § 1. In
other words, the Order gives individual States and Local
Governments veto power over resettlement.
immediate concern, as announced by Defendants on November 6,
2019, Resettlement Agencies, including Plaintiffs, that seek
to continue providing initial resettlement services
beyond June 1, 2020 must obtain prior written
consent from any State and Local Government jurisdiction in
which they propose to resettle refugees. See U.S.
Dep't of State, Bureau of Population, Refugees, and
Migration, 2020 Notice of Funding Opportunity for Reception
and Placement Program (Nov. 6, 2019) (Funding Notice). Of
even more pressing concern, the State Department has
announced that - by January 21, 2020 (the date
proposals are due) - the Resettlement Agencies must submit
proposals demonstrating to the Federal resettlement
authorities that they have solicited and obtained the written
consents from the State and Local Governments where the
refugees will be placed after June 1, 2020.Id. at 8,
Resettlement Agencies understand that any federal funding
they receive for services rendered after June 1, 2020 (the
award period) will be limited by the number of State and
Local Governments that, by January 21, 2020, have given (or
have been solicited to give) their written consent to receive
refugees. However, beginning June 1, 2020 refugees may only
be resettled where State and Local Governments have in fact
given such consents.
Judicial Review of Executive Orders
Orders are of course subject to judicial review. See,
e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579 (1952); Panama Ref. Co. v. Ryan, 293 U.S.
388 (1935); see generally David M. Driesen,
Judicial Review of Executive Orders'
Rationality, 98 Bos. U. L. Rev. 1013 (2018). The
question is, What standard should the courts apply in
reviewing the Orders? Although the Supreme Court has held
that the President is not subject to the Administrative
Procedure Act (APA), 5 U.S.C. § 551 et seq., and by
implication that the "arbitrary and capricious" and
"abuse of discretion" standards of the APA do not
apply to him, see Franklin v. Massachusetts, 505
U.S. 788 (1992), subordinate officers (three of whom are
Defendants here) are subject to the Act, see Id. at
828 (Scalia, J., concurring) ("Review of the legality of
Presidential action can ordinarily be obtained in a suit
seeking to enjoin the officers who attempt to enforce the
President's directive"). In evaluating the
President's Orders the Supreme Court has applied a
rationality standard - deferential to be sure. See, e.g.,
Trump v. Hawaii, 138 S.Ct. 2392, 2411, 2420 (2018)
("We may assume that § 1182(f) does not allow the
President to expressly override particular provisions of the
[Immigration and Naturalization Act]. But plaintiffs have not
identified any conflict between the statute and the
Proclamation that would implicitly bar the President from
addressing deficiencies in the Nation's vetting
system"). Constitutional challenges are simply evaluated
as such. The actions either are or they are not
Jackson's "three part scheme" for evaluating
Presidential Powers, as set forth in his concurring opinion
in the Youngstown case, endorsed by Justice Kennedy
and three other Justices in a concurring opinion in
Hamdan v. Rumsfeld, 548 U.S. 557, 638 (2006),
provides useful context when assessing whether executive
action is authorized:
1. When the President acts pursuant to an express or implied
authorization of Congress, his authority is at its maximum,
for it includes all that he possesses in his own right ...