ConLaw Final Exam Question #2: Can the Governor of Texas require Syrian refugees to take a loyalty oath?

December 30th, 2015

I wrote my second constitutional law question before the mass killing in San Bernadino, although it became especially salient afterwards. The crux of the question is that the FBI has warned that other Syrian refugees may be planning a terrorist attack. The Governor of Texas issues an executive order, stating that any refugee from certain countries, who applies for public assistance in Texas, is required to take a loyalty oath. The Governor also prohibits state officials from cooperating with federal officials who are resettling refugees. There are federalism and free-exercise clause issues buried in there as well.

Instructions: Recent terrorist attacks in Europe by members of a group known as ISIS have raised fears that terrorists could sneak into the United States by posing as refugees fleeing from Syria. The Governor of Texas has taken a series of actions in response to this perceived threat. You are a law clerk in the Texas Attorney General’s Office, and are asked to prepare a memorandum of no more than 1,000 words addressing five questions concerning this timely issue.

It is January 2016. Hundreds of thousands of refugees are fleeing from Syria to escape oppression by a terrorist group known as ISIS. The President of the United States has already promised to accept many of these refugees, including one thousand who were to be resettled throughout Texas. The Governor of Texas, fearing that terrorists may enter the state while posing as refugees, issues Executive Order #1:

 “No funding shall be available for local officials that facilitate the resettlement of any Syrian refugees in Texas.”

The impact of the executive order is clear—state officials at all levels of Texas government were denied any money to assist the federal government with integrating Syrian refugees into communities in Texas. Under state law, it is illegal for an official to spend money where there has not been a valid appropriation of funds.

The United States Congress strongly opposes Executive Order #1 and enacts the Syrian Refugee Act:

 “In jurisdictions that receive Federal financial assistance, the chief law enforcement officer (CLEO) shall cooperate with federal agents for the resettlement of Syrian refugees in their jurisdiction. Jurisdictions that refuse to cooperate with reasonable requests from federal agents shall lose 10% of all federal financial assistance.”

The President promptly signs the Act into law.

Every jurisdiction in Texas receives at least some Federal financial assistance. The Sheriff of Harris County, Texas announces that he and his officers will disregard Executive Order #1, and comply with the Syrian Refugee Act. The Governor files suit in state court, seeking an injunction to force the Sheriff to comply with Executive Order #1. The Governor contends that the Sherriff lacks the funding to assist federal agents, and is violating state law. The Sheriff counterclaims that Executive Order #1 is unconstitutional in light of the Syrian Refugee Act.

The following week, the FBI makes a series of arrests of Syrian refugees in Garland, Texas, who were planning a terrorist attack on behalf of ISIS. Fortunately, the arrests were made before anyone was hurt, but the people of Texas were shaken. The FBI warns that there may be other refugees planning such attacks.

The Governor, fearing that refugees from certain countries may engage in terroristic activities, issues Executive Order #2:

“As Governor, I find that refugees from certain nations are more likely to pose a terroristic threat to the people of Texas. As Governor, I have a solemn duty to protect the safety of the people of Texas. All refugees from Afghanistan, Algeria, Egypt, Iran, Iraq, Kuwait, Lebanon, Libya, Morocco, Syria, or Turkey, who apply for state public assistance, shall be required to take a loyalty oath to the U.S. Constitution and renounce allegiance to the terrorist organization ISIS.”

A Syrian refugee, recently resettled in Bastrop County, Texas, applies for public housing. The clerk insists that he first take the loyalty oath and renounce allegiance to ISIS before being offered this form of state public assistance. The refugee refuses, so the clerk denies his application.

The refugee then files suit, charging that the oath requirement violates his rights under the equal protection clause and the free exercise clause. (He does not bring any other claims under federal or state law).

In a memorandum for the Attorney General of no more than 1,000 words, please address the following five questions.

  1. Was Executive Order #1 constitutional? Specifically, can a state prohibit its officials from assisting federal officials who are resettling refugees. (For purposes of this question, do not consider the impact of the Syrian Refugee Act).
  1. Was the Syrian Refugee Act a valid exercise of Congress’s enumerated powers?
  1. Did Executive Order #2 violate the Fourteenth Amendment’s equal protection clause?
  1. Did Executive Order #2 violate the First Amendment’s free exercise clause?
  1. It is often said that in times of war, the laws fall silent. But the counter-argument is that in times of war, the laws may not keep us safe. Discuss whether racial or religious classifications can be constitutionally justified when there is a credible threat that certain groups may pose a significant threat to public safety.