Tennessee's refugee resettlement lawsuit dealt major setback, leaving U.S. Supreme Court as final option

Tennessee's lawsuit against the federal government over refugee resettlement hit another major setback Wednesday, after a panel of judges rejected a request for the case to be heard by the full 6th Circuit Court of Appeals.

The move sets the stage for the case to possibly be considered by the U.S. Supreme Court. An attorney working on behalf of Tennessee's lawsuit said Wednesday they plan to petition the nation's highest court to hear the case. 

In September, attorneys hired on behalf of the Volunteer State filed a petition seeking the appeals court to reconsider the case, which dates back to a 2016 resolution approved by the Tennessee General Assembly. 

The lawsuit, which was filed in March 2017, is based on an assertion that the federal government is forcing states to pay for costs related to refugee resettlement while violating the 10th Amendment of the U.S. Constitution. 

The amendment says the federal government possesses only the powers delegated to it by the U.S. Constitution and that all other powers are reserved for the states.

The refugee resettlement program was designed to create a permanent procedure for the admission of refugees into the United States.

Attorneys for the state's case petitioned the en banc court — which consists of 16 active judges — to reconsider a dismissal issued by appellate judges earlier in the year. 

In a one-page order, the court denied the request. 

"The original panel has reviewed the petition for hearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case," the order reads. 

The en banc petition was circulated to the full court, the orders notes, adding, "No judge has requested a vote on the suggestion for hearing en banc."

"Therefore, the petition is denied," the order concludes. 

When the appellate court dismissed the case in July, Judge Danny Boggs said the lawsuit on behalf of the legislature did not allege an injury that gave the case standing. The legislature also failed to establish it's authority to initiate the lawsuit, Boggs added. 

A federal judge initially dismissed the case in March 2018. 

The appellate court's denial of the en banc request is hardly surprising. The 4th Circuit Court of Appeals, which oversees cases in neighboring states east of Tennessee, grants rehearing en banc in 0.3% of cases requested.

With the latest setback for the lawsuit, the plaintiffs' last remaining recourse would be to petition the U.S. Supreme Court to hear the case. 

Richard Thompson, president and chief counsel for the Thomas More Law Center, which was hired to represent the state's case, confirmed they would petition the high court. 

"We always felt that this case would end up in front of the U.S. Supreme Court," the told The Tennessean. 

Thompson, who noted he was not surprised by the appellate court's decision on the en banc request, given that they are seldom granted, said the law center has 90 days to file its petition to the Supreme Court.

Efforts related to the lawsuit have frequently been criticized by the American Civil Liberties Union of Tennessee and the Tennessee Immigrant and Refugee Rights Coalition, which have said it will negatively affect the state’s refugee community and perpetuate a culture of fear.

Hedy Weinberg, executive director of ACLU-Tennessee, said the appellate court's decisions needed to be taken in context. 

"Under both Republican and Democratic administrations, America has been a leader in providing humanitarian protections to people fleeing persecution, torture and genocide. For decades, we have sheltered people from across the globe, enriching our communities and proudly standing as a beacon of hope in the process," she said.

"Today, the U.S. government under President Donald Trump is doing everything it can to destroy those protections, including providing states an opportunity to veto refugee resettlement in their communities." 

Lisa Sherman-Nikolaus, TIRRC's policy director, said, “Once again the court has rejected the Tennessee General Assembly's absurd and hateful attempt to keep refugees out of our state." 

Both the ACLU and TIRRC vowed to continue to stand up for refugees.

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Reach Joel Ebert at jebert@tennessean.com or 615-772-1681 and on Twitter @joelebert29.