Grassley to administration: You must consult Congress on refugee cap

Sen. Chuck Grassley (R-Iowa) on Tuesday went after the Trump administration for its failure to consult with Congress before proposing to slash the number of refugees the U.S. will accept next year.

Grassley, who’s chairman of the Senate Judiciary Committee, said the administration has a legal obligation to seek counsel from Congress before proposing new caps on refugees. If Trump officials don’t oblige, he warned, Congress will act to force their hand.

{mosads}“While I appreciate the administration’s commitment to protecting national security and public safety by proposing a refugee cap, which accounts for the need to conduct adequate and thorough screenings of all who seek this benefit, it is imperative the agencies abide by their statutory mandate to consult with Congress before any number is proposed,” Grassley said in a statement.

“Yet, for the second year in a row, the administration has willfully ignored its statutory mandate to inform and consult with Congress, including designated members of both the House and Senate Judiciary Committees, about the number of refugees to be admitted during the next fiscal year.”

The comments came a day after Secretary of State Mike Pompeo announced that the cap for refugees resettled in the U.S. in fiscal 2019 will be 30,000 — a sharp reduction from the 45,000 cap this year.

The move drew howls from Democrats, who accused Pompeo of undermining the role of the U.S. as a bastion of safety and human rights for the world’s most threatened populations amid of host of international conflicts.

“This historically low number betrays America’s values and relinquishes our leadership role in defending human rights,” Sens. Dianne Feinstein (D-Calif.) and Dick Durbin (D-Ill.) said Tuesday in a statement. Both lawmakers are members of the Senate Judiciary Committee.

Pompeo on Monday noted that the U.S. offers other protective programs outside of refugee status, arguing the new cap “must be considered in the context” of those other assistance initiatives. The U.S., for instance, will accept as many as 280,000 asylum seekers in fiscal 2019, he said.

“Some will characterize the refugee ceiling as the sole barometer of America’s commitment to vulnerable people around the world,” he said. “This would be wrong.”

Grassley appeared unmoved, threatening legislation if the administration fails to consult with Congress.

“It is clear by the administration’s action that Congress should take action to ensure the required discussions occur in the future,” he said.

Just hours before Grassley issued his statement, State Department spokeswoman Heather Nauert said the administration will consult with Congress before reaching a final cap number.

“The administration will have consultations with Congress,” Nauert told reporters. “After those consultations with Congress, the president will then be able to make his determination. So the number that was announced yesterday may not be the final number.”

The annual refugee intake number is set by the president through what’s known as presidential determination. By law, that determination is reached with advice from Congress, but the consultation process has been largely ignored by both Republican and Democratic administrations.

Grassley and Feinstein sent a letter to administration officials last month requesting “steps to ensure that the consultation process is both consistent with federal law and meaningful.”

“Unfortunately, over the last decade the annual consultation process and the periodic updates required by law have increasingly become both pro-forma and effectively meaningless,” the senators wrote. “To be clear—and fair—this is not a new problem unique to the Trump Administration.”

Mark Greenberg, a senior fellow at the Migration Policy Institute, said there are few known avenues to legally enforce a stricter consultation process.

“That would likely be a difficult case, because failure to consult with Congress historically [has been] the kind of issue that courts are hesitant to get involved with,” said Greenberg.

He added that the Trump administration’s treatment of the refugee program — setting low refugee numbers and admitting a low percentage of that number — is unique.

“We’ve never faced a situation quite like this where there is a very sharp reduction in the admission of refugees, simply because the administration is hostile to the refugee program,” said Greenberg.

According to a Congressional Research Service report on refugee admissions, between fiscal 2007 and 2017 the refugee admission cap fluctuated from 70,000 to 110,000.

In former President Obama’s second term, admission numbers were almost always equal to the cap. In 2013, the U.S. admitted 69,296 refugees out of 70,000 allowed; in 2014 it was 69,987 out of 70,000; in 2015, it was 69,933 out of 70,000; and in 2016, the U.S. admitted 84,994 out of 85,000.

In President Trump’s first year in office, the cap was set a year prior by the Obama administration, at 110,000 refugees, but only 53,716 were admitted.

Still, the refugee cap is a limit set by the president, not a goal to reach for. In fiscal 2011, for example, Obama set an 80,000 refugee cap, but only 56,424 people were admitted through the program.

And, short of changing refugee laws, there is little Congress can do to push the administration to try to fill the yearly refugee cap, said Greenberg.

“I can’t think of a legal theory that could be used as the basis for the challenge,” he said. “That’s not to say that no one could think of a legal theory.”

Rep. Ruben Gallego (D-Ariz.) said “Republicans in the House … have totally given up their historical support of refugee communities.”

“Until Democrats take power, there is nothing we can do,” he added.