Thomas More Law Center

The Sword and Shield for People of Faith

state sovereignty

The Federal Government’s “Unconstitutional Compulsion” – AUDIO: Tennessee and Government Lawyers Spar Over The Federal Refugee Resettlement Program

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In a case with critical constitutional implications for the principles of federalism and state sovereignty, a three-judge panel of the Sixth Circuit Court of Appeals heard oral arguments Tuesday morning on Tennessee’s challenge to the federal refugee resettlement program.  

Attorney John Bursch appearing for the Thomas More Law Center, argued on behalf of Tennessee’s General Assembly, while DOJ attorney Samantha Lee Chaifetz argued for the Federal Government. Each side had 15 minutes to present its case. Mr. Bursch took 10 minutes for his initial presentation and reserved 5 minutes for rebuttal.

Both lawyers were peppered with questions by Judge Boggs. By the end, it still remained unclear whether the judges were leaning towards one side or the other.  

However, I have linked below to the court-provided audio of the entire oral argument, so you can judge for yourself.  Also, separately linked is Mr. Bursch’s 5-minute rebuttal which counters the arguments made by the Federal Government.

Listed below are some salient quotes from Mr. Bursch’s argument to the 3-judge panel: 

  • “When the Federal Government implements an exclusively federal program, it cannot commandeer state funds to pay for it under a threat that the Federal Government will cut 20% of a state’s budget if it does not comply. That is unconstitutional compulsion.” 

 

  • “The Tennessee General Assembly is the institutional plaintiff asserting an institutional injury. It can’t satisfy its State Constitutional obligations under Article 2 Section 24 of the State Constitution to have a balanced state budget because the Federal Government can simply syphon off state funds from the Tennessee general program whenever it wants to by placing more refugees.” 

 

  • “The question is whether the Federal Government’s pressure has turned into compulsion or coercion or duress.”

 

  • “The only one telling the Tennessee legislature that it can’t defend its own interest is the Federal Government. The same Federal Government which can yank those 20% of the Medicaid funds, the 20% of the State budget, if we don’t comply.”

 

  • “The language the Supreme Court uses when the Federal Government uses funding mechanisms where pressure turns into compulsion, coercion, pressure, duress that’s when it violates this 10th Amendment federalism principle.” 

 

  • “The Assembly members take an oath to uphold state and federal law at the time they go into office and if they would propose a statute with a plan that didn’t result in us paying for this federal program, we would be violating federal law.”

 

Click here to listen to the entire oral argument  

Click here to listen to John Bursch’s 5-minute rebuttal  

Richard Thompson, Esq.

President and Chief Counsel

THOMAS MORE LAW CENTER 

Renowned Appellate Lawyer To Argue Tennessee Refugee Resettlement Case For The Thomas More Law Center

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March 13, 2019

   ANN ARBOR, MI – The Thomas More Law Center (“TMLC”), a national nonprofit public interest law firm based in Ann Arbor, Michigan, announced today that nationally prominent appellate lawyer John Bursch will represent the state of Tennessee and its General Assembly on March 19 before a 3-judge panel of the U.S. Sixth Circuit Court of Appeals.  

   The Thomas More Law Center was retained by the Tennessee General Assembly in March 2017 to file a first-of-its-kind Tenth Amendment lawsuit challenging the constitutionality of the federal refugee resettlement program. The federal government has violated state sovereignty by forcing Tennessee to continue paying for the program after Tennessee opted out and exercised its right not to participate. TMLC is appealing after a federal district court judge dismissed the case. The Law Center is representing Tennessee without charge.

   Mr. Bursch, a former Michigan state solicitor general and past chair of the American Bar Association’s Council of Appellate Lawyers, has an impressive client list ranging from Fortune 500 companies and foreign and domestic governments, to top public officials and industry associations in high-profile cases. His cases frequently involve pressing political and social issues, and five had at least $1 billion at stake.   

   He has argued 11 U.S. Supreme Court cases and obtained summary reversal on three more, compiling a Supreme Court merits record of 10-2-2.  He has also argued 30 cases in state supreme courts, and dozens more in federal and state appellate courts across the country. A recent study included John on its “veritable who’s who of Supreme Court litigators” list.

   Although Tennessee officially withdrew from participation in the federal refugee resettlement program in 2007, the federal government continues to commandeer state tax dollars to fund the federal program.

   Tennessee has a history of supporting the Tenth Amendment and state sovereignty.  In 2009, House Joint Resolution 108, which passed in the Senate 31-0 and in the House by 85-2, demanded that the federal government halt its practice of imposing mandates on the states for purposes not enumerated by the U.S. Constitution.

   Richard Thompson, TMLC President and Chief Counsel, commented: “John’s integrity, outstanding litigation skills, and impressive record on appeals prompted me to ask him to join our fight.  I can’t think of anyone more qualified to represent Tennessee and the constitutional principles involved in this case.”

Thomas More Law Center Files Opening Brief On Behalf Of Tennessee Challenging The Federal Refugee Resettlement Program

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July 5, 2018

   ANN ARBOR, MI – The Thomas More Law Center (“TMLC”), a national public interest law firm, based in Ann Arbor, Michigan, on Monday, July 2, 2018, filed its opening appellate brief in the Sixth Circuit Court of Appeals on behalf of Tennessee challenging the constitutionality of the federal refugee resettlement program.

   The Thomas More Law Center represents all the plaintiffs in the appeal: The State of Tennessee, the Tennessee General Assembly, and two individual legislators, Senator John Stevens and Representative Terri Lynn Weaver. TMLC originally filed its lawsuit on behalf of the plaintiffs in a Tennessee federal district court against various federal departments and federal officials on the grounds that implementation of the federal refugee resettlement program violated the Tenth Amendment’s state sovereignty principles and the Spending Clause of the United States Constitution. 

   The lawsuit sought to permanently ban the federal government from forcing Tennessee to fund the federal refugee resettlement program out of its own treasury. However, a federal district court judge dismissed the case on March 19, 2018. TMLC’s appeal seeks to reverse the court’s ruling.

   Kate Oliveri, a TMLC attorney who co-authored the appellate brief, commented, “The federal government is forcing the tax-paying citizens of Tennessee to fund the federal refugee resettlement program despite their elected state officials withdrawing from the program. The federal district court erred, not only in allowing this usurpation of state funds, but also by holding that the General Assembly cannot bring a lawsuit to defend against any usurpation of its power.”

   When Congress enacted the Refugee Resettlement Act of 1980, the explicit intent was to assure full federal reimbursement of the costs for each refugee resettled and participating in benefit programs provided by the states. Eventually, federal reimbursements to the states for these benefit programs were reduced and, by 1991, entirely eliminated. As a result, the states became responsible for the immense costs of the programs originally covered by the federal government.

   Tennessee officially withdrew from participation in the refugee resettlement program in 2007. However, instead of honoring Tennessee’s decision to withdraw from the program, the federal government merely bypassed the State and appointed Catholic Charities of Tennessee, a private, non-governmental organization to administer the program. Catholic Charities receives revenue based upon the number of refugees it brings into the State.

   In their brief, the Tennessee-plaintiffs made clear they are not claiming any authority to regulate immigration or to discriminate against refugees or any other category of immigrants. They do contend, however, that the U.S. Constitution prohibits the federal government from commandeering state funds to support the federal government in its implementation of federal immigration and naturalization law.

   The fact that the U.S. Constitution grants the federal government authority over immigration and naturalization, does not give it the right to violate the Constitution’s Tenth Amendment state sovereignty principles or the Spending Clause.

   Richard Thompson, TMLC’s President and Chief Counsel, stated, “This case involves critical constitutional issues regarding the appropriate balance between the powers of the federal government and the states. Our lawsuit and appeal focuses solely on the unconstitutional manner in which the federal program is currently operating in the State of Tennessee. The district court decision dismissing this case conflicts with several U.S. Supreme Court opinions upholding state sovereignty against overreach by the federal government.  The purpose of this lawsuit is to preserve the balanced constitutional relationship between the Federal government and the States as intended by our Founding Fathers, and which is so crucial to our individual liberties.”

Click here to read TMLC’s brief.