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When Bias and Empathy Meet

The day before the terrorist attack in Paris on Friday, a lesser reported double suicide bombing cut through Beirut, Lebanon, killing forty-three civilians and leaving hundreds injured. ISIS claimed responsibility for the explosions, which is “the deadliest suicide bombing to hit the city since that conflict ended in 1990.” And then, the next day, ISIS attacked France, which easily took the attention of the world from what may have been directed at Lebanon and their current struggles.

This juxtaposition exemplifies a pattern – one that has existed in the past and yet, rarely have events lined up so perfectly to give an observer the chance to compare events. The pattern is that violence in one part of the world overshadows a concurring violent act, splitting the attention of the world in a biased way. The current instance spotlights this pattern and has been met with frustration, lamentation, and demands for explanations for why their strife is being ignored from the Lebanese people. But what is to be blamed for the gap in empathy? A few reasons have been posited for this, such as “many Americans hear ‘Paris’ and think of the Eiffel Tower; they hear ‘Beirut’ and immediately associate it with war” – an outdated notion that seems to have stuck. Perhaps it is the familiarity Americans have with Paris, whether through movies, study abroad, or family vacations. Among other factors, there is the potential that there “is also a troubling tribal, or racial, component to this familiarity factor as well: people tend to perk up when they see themselves in the victims.”

While there may be a number of reasons the empathy gap exists, there are consequences to such disparities, specifically the exclusion and persecution of the Syrian refugees, who seek to flee their war torn nation and find refuge in America. The United States federal government states that roughly 10,000 refugees will be accepted by the end of this year. However, governors from at least thirty states – including Texas, Massachusetts, Michigan, North Carolina, and Georgia – have stated they will not be accepting any refugees as a result of the attacks in Paris. These announcements come on the heels of the false identification of one of the bombers in Paris as Syrian citizen, Ahmad al Muhammad, creating the stir of fear that terrorists might infiltrate groups of refugees and enter the United States with them. One governor, Governor Jack Markell of Delaware, has stated firmly that Delaware will take in refugees, stating that “[i]t is unfortunate that anyone would use the tragic events in Paris to send a message that we do not understand the plight of these refugees, ignoring the fact that the people we are talking about are fleeing the perpetrators of terror.”

With bias and empathy clashing, and governors of multiple states declaring they will not take in refugees, defying the federal government, a pressing legal question arises: Whether the state governments can defy the federal government and refuse to take in Syrian refugees? The simple answer is no, “states have no authority to do anything because the question of who should be allowed in this country is one that the Constitution commits to the federal government,” but it will be a much more difficult task for the federal government without compliance from the states.

At least three major legal issues forestall state governments from refusing to take in refugees: the Constitution, the Refugee Act of 1980, and Truax v. Raich.

The Constitution gives the federal government sovereignty over immigration and the vesting of citizenship in aliens, better known as naturalization. While these Syrian refugees may not be seeking naturalization citizenship in the United States, their immigration into the country falls under the federal government’s power under the Constitution. Additionally, the Constitution’s Supremacy Clause states that the “Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States” shall be the supreme law of the land. This means that the Constitution, the Supreme Court, and any laws passed by Congress preempt any state law that seeks to occupy an area of law the federal law already occupies.

Furthermore, the Refugee Act of 1980 amended the Immigration and Nationality Act and the Migration and Refugee Assistance Act to “provide a permanent and systematic procedure for the admission to the United States of refugees of special humanitarian concern to the U.S., and to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted.” Congress passed this amendment with the specific purpose of occupying the field of processing refugees and allowing them entry into the country for their protection. While the Act requires consultation with states regarding resettlement, it does not require permission. Thus, Congress unambiguously preempted state laws that would occupy the field of refugee admission.

Finally, Truax v. Raich ruled that Arizona law, which stated that most businesses need to be comprised of at least 80% qualified United States native born citizens, violated the Equal Protection Clause of the Fourteenth Amendment, because “the complainant, a native of Austria, has been admitted to the United States under the Federal law. He was thus admitted with the privilege of entering and abiding in the United States, and hence of entering and abiding in any State in the Union.” This case exemplifies the United States federal government’s sole authority in the field of immigration. If a state was able to exclude or deny immigrants from the opportunity to earn a livelihood when lawfully admitted, then this would be “tantamount to the assertion of the right to deny them entrance and abode, for, in ordinary cases, they cannot live where they cannot work. . . if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress, instead of enjoying in a substantial sense and in their full scope the privileges conferred by the admission, would be segregated in such of the States as chose to offer hospitality.”

While there are multiple grounds on which the federal government can preempt the state governments’ refusal to take in refugees, the federal government will have an uphill battle still because the governors of their respective states will ensure the process of taking in refugees will be difficult.


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