Near the conclusion of more than 50 sometimes shouted questions and incredulous interruptions of Indiana Solicitor General Thomas Fisher on Wednesday, exasperated 7th Circuit Court of Appeals Judge Richard Posner said to him, “Honestly. You are so out of it.”
Judges appeared convinced Gov. Mike Pence’s stance against the resettlement of Syrian refugees was discrimination based on national origin. During Wednesday’s oral argument, they were scornful of Fisher’s arguments in support of the policy, which Judge Diane Sykes noted had been announced in a press release from Pence, now the Republican vice presidential nominee.
Fisher argued to the Chicago court that Pence’s policy of withholding federal money to assist in the resettlement of Syrian refugees was not discriminatory, as a district court judge in Indianapolis ruled. Pence announced the policy in the wake of the terrorist attacks in Paris last year, saying he was using his authority in an effort to protect Hoosiers.
“Where U.S. officials admit we have compromised intelligence, it neither constitutes national origin discrimination nor exceeds the governor’s authority under the Refugee Act or under other federal law,” Fisher argued. He repeatedly pointed to congressional testimony of FBI director James Comey and other federal security officials who cast doubt on the available intelligence of refugees from war-torn Syria.
“Gov. Pence’s directive is merely a response to conditions, and it is meant to be temporary. … It is not meant to be a barrier to the actual resettlement of Syrians in Indiana,” Fisher said, which drew an audible chuckle from Judge Frank Easterbrook.
Posner pointed out it’s the State Department, not the FBI, which is charged with screening refugees. “So you don’t trust them, is that the point?” Posner asked. “(Pence) doesn’t listen to the State Department?”
“Well, he’s listening to the FBI director,” Fisher said, at which point Posner erupted.
“Well look,” he shouted, “the State Department screens refugees. The FBI does not screen refugees.”
“I don’t understand what difference it makes what the FBI says,” Easterbrook said to Fisher. “We have an amicus brief filed by the United States, and the United States thinks that Indiana has exceeded its authority. That seems to be the thing from the United States that we should be listening to.
“When a state makes an argument saying, ‘We’re differentiating according to whether somebody comes from Syria, but that has nothing to do with national origin,’ all it produces is a broad smile,” Easterbrook said.
He pressed Fisher on where Pence could draw authority to suspend resettlement aid only for refugees from Syria. “Is there some language in the Refugee Act that you’re relying on that says you could be out [of the refugee aid program] for a particular country of origin, when the Refugee Act expressly forbids distinctions on the basis of country of origin? … Is there any language in the statute you’re relying on?”
Fisher replied, “No. … What we’re relying on is what we think of as our right not to participate, partially.”
“Look,” Easterbrook said, “You have a right not to participate in part if the statute gives you that right. That’s why I said, ‘What language in that statute are you relying on,’ and your answer is, as I understand it, none. Well then, you don’t have such a right.”
Posner asked Fisher later in the argument, “Are Syrians the only Muslims Indiana fears?” to which Fisher replied, “This has nothing to do with religion.” Posner taunted, “Oh, of course it does,” which led to a heated exchange, during which Fisher seemed to catch himself and apologized for arguing over Posner. This drew a stern rebuke from Easterbrook.
“Attempting to argue over a judge is not a productive method of argument,” he told Fisher.
Posner continued to press Fisher on why the state would single out Syrian refugees, and Fisher again returned to the testimony of Comey and an assistant FBI director.
“In other words, we have enough information to prevent terrorist attacks by anybody who is not from Syria, is that what you’re saying? Is that what the FBI says — we’re perfectly secure from everyone except Syrians? That’s preposterous, right?”
“I’m not sure how else to say it,” Fisher said. “This is what the governor has said … in response to what has been said about Syria and what is going on. This is what governors are elected to do. They make judgments about these things.”
Posner was unsatisfied, and Easterbrook probed Fisher again for Pence’s authority.
“The state’s position, as I understand it, is the director of the FBI has higher authority over terrorism than the president of the United States, and the state doesn’t have to follow the rules of the Refugee Act, which is pretty extraordinary on both counts,” Easterbrook said.
“The president of the United States has determined that the United States knows enough to admit 10,000 Syrian refugees,” he said. “That’s the president’s decision. May be right, may be wrong. I don’t see how a governor can disagree with a president by saying, ‘Well, the FBI director may have given him contrary advice.’”
The Associated Press reported that more than 100 refugees from Syria have resettled in Indiana since February, according to Exodus Refugee Immigration Inc., which sued Pence in response to his directive to suspend aid. Exodus is represented by the American Civil Liberties Union of Indiana.
Judges questioned Fisher for about 20 minutes of an oral argument that lasted just more than 27 minutes, and had comparatively few questions for ACLU of Indiana Legal Director Ken Falk, who urged the panel to affirm the district court.
“This is obviously national-origin discrimination,” Falk said. “… That’s the avowed purpose of the state’s policy, to target Syrians, to try and discourage Syrians, to refuse to pass through money it has taken from the federal government for the benefit of Syrian and other refugees.”
Falk also said the Pence administration’s concerns about the congressional testimony appeared to be taken from media reports. He pointed the court to the full transcripts of the officials’ remarks in which he said they were committed to the resettlement process that they believe strikes a balance between security and the need to provide aid to people in a “horrible” situation.
“Indiana’s saying, we have these Syrian refugees, we don’t want them in Indiana … we are discriminating against them. Whether we call that a violation of equal protection because of nationality discrimination or whether we call that a violation of the Refugee Act,” he said, “we get to the same place. … What Indiana is doing is clearly prohibited.”
Fisher used only about one minute of time he’d reserved for rebuttal, seeming to sense the state would not persuade the 7th Circuit to rule in its favor. He told the judges the state would like more information about the refugees.
Fisher acknowledged the U.S. pointed out excluding people on the basis of national origin is “too narrow and … fine,” he said. “We’re willing to look at other information about this.”•