First-Term Refugee Cuts and Executive Order 13888: Record-Low Ceilings and a State and Local Veto Courts Held Likely Unlawful

What happened

Under section 207 of the Immigration and Nationality Act, the President sets an annual ceiling on refugee admissions after consulting Congress. The first Trump administration cut that ceiling four times:

Fiscal year	Ceiling	Source
FY2018	45,000	Presidential Determination 2017-13, Sept. 29, 2017
FY2019	30,000	Pew Research Center
FY2020	18,000	Pew Research Center
FY2021	15,000	Presidential Determination 2021-02, Oct. 27, 2020

Pew reported that about 22,500 refugees were admitted in FY2018, the first full fiscal year of the term, and that the 30,000 cap was reached in FY2019. By comparison, "the U.S. admitted nearly 85,000 refugees in fiscal 2016 alone." Pew noted that the FY2020 ceiling would be "the lowest number of refugees resettled by the U.S. in a single year since 1980, when Congress created the nation's refugee resettlement program." DW reported that the State Department justified the FY2021 figure by the COVID-19 pandemic.

On September 26, 2019, Executive Order 13888 changed the resettlement process itself. Under it, refugees could be resettled only where "the State and locality both consent, in writing." The State Department's implementing notice put the burden of obtaining every consent on the private resettlement agencies. NPR reported that in January 2020 Texas, which had resettled more refugees over the previous decade than any other state, became the first state to say it would refuse them.

Three resettlement agencies (HIAS, Church World Service and Lutheran Immigration & Refugee Service) sued. Judge Peter Messitte of the District of Maryland granted a preliminary injunction. NPR reported his finding that the administration had offered no rationale for "doing away entirely with a process that has worked so successfully for so long." On January 8, 2021, the Fourth Circuit affirmed.

Legal analysis

Rome Statute. No international crime is in play. Declining to resettle refugees from abroad is not deportation or forcible transfer, and the sources do not suggest any Art. 7 attack. The crime type is none.

The consent order (adjudicated). The Fourth Circuit held that the plaintiffs "are likely to succeed on their claim that the Order and Notice violate the carefully crafted scheme for resettling refugees that Congress established in the Refugee Act." The Act requires the federal government to consult states and localities. The court relied in part on the House report on the 1986 amendments, which states that consultation is "not intended to give States and localities any veto power over refugee placement decisions." EO 13888 gave them exactly that veto. This is a preliminary-injunction finding (likelihood of success), not a final judgment on the merits. Both courts nonetheless found the order probably unlawful.

The ceilings (not adjudicated, lawful discretion). INA § 207 gives the President the power to set the ceiling, and this review found no court decision holding the cuts unlawful. The 1967 Protocol, to which the United States is a party, protects refugees against refoulement but gives no individual a right to be resettled from abroad. The cuts are therefore a policy choice with large humanitarian consequences, not a legal violation.

Strongest defence argument. The administration argued that the order only gave state and local governments a fuller voice in a federal programme that affects their budgets and services, consistent with federalism. The Fourth Circuit rejected this on the statute: Congress designed consultation, not consent, and said so expressly. On the ceilings, the defence (statutory discretion) succeeds.

Why this grade

Major. The major grade covers executive action that circumvents statutory constraints, and the consent order is that: two federal courts found it likely contrary to the Refugee Act. The ceilings sharply reduced protection for refugees, but they were lawful, and the sources fetched do not identify specific individuals harmed in a way that would support severe. The entry does not carry warCrimeClassification because no international crime is in play. The second-term suspension of the programme is recorded in Refugee Resettlement Suspension.