Indiana governor and Donald Trump running mate Mike Pence did well for himself in this week's vice presidential debate, if pundits and flash polls are to be believed. But his debate night triumph came on the heels of a stinging legal defeat, as the Seventh Circuit upheld an injunction against his Syrian refugee ban. Pence instituted the ban last year, after the terrorist attack in Paris, directing state agencies to stop funding the resettlement of Syrian refugees.
The Seventh Circuit wasn't having it. On Monday, the Seventh shut down Pence's ban, in a six-page tongue lashing that described the governor's logic as unfounded and based on "nightmare speculation." The ruling came shortly after last month's oral arguments during which Seventh Circuit Judge Richard Posner could barely contain his withering disdain for the state's position. Scratch that. He couldn't contain his distain at all, declaring at one point "Honestly. You are so out of it."
"That's Preposterous, Right?"
When Governor Pence declared that Indiana would no longer direct federal funds to groups that helped resettle Syrian refugees, he received praise from the right and stiff criticism from the left -- and a quick lawsuit from Exodus, a human rights group that helps resettle refugees and asylees in Indiana.
The Refugee Act of 1980 provides money to domestic resettlement and assistance programs via plans operated by the states. That Act also requires that those funds be used "without regard to race, religion, nationality, sex, or political opinion." Exodus, who was contracted to provide refugee services through Indiana's Refugee Act plan, argued that the order was a blatant violation of that anti-discrimination provision.
When it came time to defend the order before the Seventh Circuit, Indiana Solicitor General Thomas Fisher had a hard go of it. "When a state makes an argument saying, 'We're differentiating according to whether somebody comes from Syria, but that has nothing to do with national origin,' all it produces is a broad smile," Judge Easterbrook said.
It led to a bit more than a smile for Judge Posner, however, who was obviously angered and exasperated by the state's position. "In other words, we have enough information to prevent terrorist attacks by anybody who is not from Syria," but not from Syrians, "is that what you're saying?" he asked. "That's preposterous, right?"
Smacked Down and Down and Further Still
Judge Posner drove his points home in his brief opinion taking down the governor's order:
The governor of Indiana believes, though without evidence, that some of these persons were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States in order to commit terrorist acts here. No evidence of this belief has been presented, however; it is nightmare speculation.
The state has shown no evidence that Syrian refugees had ever committed terrorist acts against the United States, Posner wrote. And if they were a threat, Indiana's policy does not alleviate that threat:
[I]mplementation of the governor's policy would simply increase the risk of terrorism in whatever states Syrian refugees were shunted to. Federal law does not allow a governor to deport to other states immigrants he deems dangerous; rather he should communicate his fears to the Office of Refugee Resettlement.
When it comes to Pence's logic, the judge doesn't pull punches. The state had argued that banning Syrian refugees wasn't nationality-based discrimination because it was based solely on the threat posed by Syrian refugees, not their country of origin.
But that's the equivalent of saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they're black but because he's afraid of them, and since race is therefore not his motive he isn't discriminating.
Lest you think that Posner is playing the role of party hack, it's worthwhile to remember that he is one of that nation's most prominent conservative jurists. And he was joined by two others, Judges Easterbrook and Diane Sykes, who joined in full.