The last thing an attorney defending a case wants to hear from a judge surely is this: “Honestly. You are so out of it.”
Yet that’s what Indiana Solicitor General Thomas Fisher heard last week as he tried to defend Gov. Mike Pence’s opposition to resettlement of Syrian refugees in Indiana. The court’s decision will follow, but the reception Fisher received suggests the court believes as we do – that the governor’s policy discriminates against a group of people because of where they come from and the religion they follow.
Seventh Circuit Court of Appeals Judge Richard Posner, a Ronald Reagan appointee who is one of the nation’s most-cited legal scholars, clearly wasn’t buying Fisher’s argument that the policy of withholding federal money designated for resettlement assistance of Syrian refugees wasn’t discriminatory. The three-judge panel shouted questions and interrupted Fisher more than 50 times during the hearing, held to hear the state’s challenge of an injunction by U.S. District Judge Tanya Walton Pratt. She blocked Pence’s order, declaring it unconstitutional discrimination. Exodus Refugee Immigration, which has resettled Syrian refugees in Indiana this year despite Pence’s directive, sued the state over Pence’s policy.
Fisher’s arguments produced an astonishing back-and-forth, largely focusing on the governor’s policy of separating Syrians from other refugees and whether he has the authority to do so.
“When a state makes an argument that we’re differentiating according to whether somebody is from Syria, but that has nothing to do with national origin, all it produces is a broad smile,” said Judge Frank Easterbrook, another Reagan appointee, with a chuckle.
Fisher said the state was merely making an exception in a single grant program under the federal Refugee Act.
But the solicitor general’s most heated exchange came with Posner.
“Are Syrians the only Muslims Indiana fears?” the judge asked.
“Well, this has nothing to do with religion,” Fisher responded.
“Oh, of course it does,” said Posner.
“Oh, I object to that, your Honor,” Fisher said indignantly.
“Look, if you look at the terrorist attacks in the United States – 9/11, the attacks in New York, Boston, San Bernardino – they’re all by Muslims. ISIS is Muslim. Al-Qaida was Muslim, right? You understand that, don’t you?” Posner continued.
Fisher argued Syria is the only country about which the U.S. does not have complete information, based on comments by some FBI officials.
Posner said it is not the FBI, but the State Department, that is charged with screening refugees. “So you don’t trust them, is that the point? ... (Pence) doesn’t listen to the State Department?”
“Well, he’s listening to the FBI director,” Fisher said, causing Posner to grow agitated.
“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. “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.”
ACLU of Indiana Legal Director Ken Falk, representing the refugee resettlement service, faced none of the harsh questioning leveled at Fisher.
“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,” Falk argued, “we get to the same place. … What Indiana is doing is clearly prohibited.”
About 130 Syrian refugees have resettled in Indiana since February, according to Exodus. They are among an estimated 10,000 refugees likely to be resettled in the U.S. by the end of this month. Still, they represent a tiny fraction of an international human rights crisis. The United Nations Refugee Agency estimates more than 4 million Syrians have now fled war and persecution.
That point adds some important perspective: Thomas Fisher’s bad day in federal court was better than any Syrian refugee’s day.