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Why Texas’ Attempt to Block a Syrian Refugee Family Probably Won’t Work

7 minute read

Texas’ new lawsuit against U.S. government, an attempt to block the resettlement of Syrian refugees in the state, is probably more of a political stunt than a workable legal challenge, experts and refugee advocates who work in the field say.

The lawsuit, filed Wednesday by state Attorney General Ken Paxton, marks the first case against the federal government since the Obama Administration renewed its commitment to accept as many as 10,000 Syrian refugees this year.

The issue became explosive in the wake of the terrorist attacks in Paris on Nov. 13, when Republican governors in 31 states, including Texas Governor Greg Abbott, and a flurry of Republican lawmakers all vowed to ban Syrian refugees from U.S. soil on the grounds that ISIS combatants could slip into U.S. borders along with asylum seekers.

Those hawkish promises have proven deeply appealing to many conservatives in the Republican base, but hinge on what many experts see as shaky legal ground.

That’s partly because the U.S. Constitution delegates all immigration policy—a broad category that includes refugees and asylum seekers—to the federal government, not the states. In other words: when it comes to refugees, federal policy trumps. In 2012, the Supreme Court struck down an Arizona law aimed at undocumented immigrants on precisely these grounds.

Ian Millhiser of the Center for American Progress, a left-leaning think tank in Washington, D.C., dismissed the Texas challenge as “comically frivolous.”

But that doesn’t mean Texas’s legal challenge should be dismissed out of hand. One expert, who asked not to be identified because of the ongoing status of the suit, pointed out that Texas’s success could easily turn on which federal judge ends up hearing the case.

In previous legal battles over the Obama administration’s immigration policies, state attorneys general were able to “forum around,” as its known, in search of a judge likely to be sympathetic to their argument. For example, in Texas’ high-profile challenge to Obama’s executive order on immigration this year, the attorney general’s office successfully maneuvered to have the case heard by Judge Andrew Hanen, who has a long reputation as an immigration hawk.

As of now, it’s unclear which judge will hear the case, although it’s likely to be one the federal district that includes Dallas. But even if that’s the case, experts point out, it’s not necessarily bad news for the Texas attorney general: most of the judges in that district are Republican appointees.

Read More: This Is How the Syrian Refugee Screening Process Works

At any rate, the legal wrangling will likely not hinge on constitutional authority, since the lawsuit does not directly challenge either federal authority or any federal law. Instead, it moves to block the federal resettlement process on the grounds that authorities did not adequately adhere to two main provisions in the federal Refugee Act of 1980.

The first provision says that federal officials overseeing refugee resettlement “shall consult regularly (not less often than quarterly) with State and local governments and private nonprofit voluntary agencies” and they must do so “before their placement in those States and localities.”

The second provision says that federal refugee resettlement programs “should be conducted in close cooperation and advance consultation with State and local governments.”

Texas argues that because the feds alleged failed to meet the requirements of both provisions, a federal judge can issue a “temporary restraining order” blocking the entry of new Syrian refugees, in light of “reasonable concerns about the safety and security of the citizenry of the state of Texas,” according to documents.

The lawsuit names U.S. Secretary of State John Kerry and Secretary of Health and Human Services Sylvia Burwell, along with the non-profit International Rescue Committee, which has been primarily involved with coordinating the family’s move. The International Rescue Committee of Dallas did not respond to multiple requests for comment.

“We have been working diligently with the International Rescue Committee to find a solution that ensures the safety and security for all Texans,” said Bryan Black, a spokesman for Texas’s health commission, in a press release, “but we have reached an impasse and will now let the courts decide.”

Millhiser of CAP argues that even if Texas can prove that the federal government did not meet some minimum standard of “advance consultation,” it’s unclear if the state has the right to bring a case in this way or, even if it did, if the remedy would be restraining future refugee placement.

He also points out that although language about “close cooperation” appears in the law, it is only in the preamble, not in the section laying out the federal government’s actual obligations. Such statements “are often cited by courts to help resolve ambiguities that appear elsewhere in the same law,” Millhiser explains. “But they do not generally impose requirements on the federal government.”

The International Rescue Committee said in a statement Wednesday that it has worked in coordination with Texas officials for forty years, and plans to continue to do so. “Refugees are victims of terror, not terrorists, and the families we help have always been welcomed by the people of Texas,” the statement said. “The IRC acts within the spirit and letter of the law, and we are hopeful that this matter is resolved soon.”

Aaron E. Rippenkroeger, the predient and CEO of Refugee Services of Texas, said he could not comment on the case either, but wrote in an email that the organization will “continue to serve our clients while we seek guidance on the ramifications of the federal and State of Texas Health and Human Services Commission requirements in light of the State’s request to discontinue resettlement services for Syrian refugees in the future.”

Read More: Republican Candidates Weren’t Always Skeptical of Syrian Refugees

Jessica Therkelsen, the global policy director for the refugee advocacy organization Asylum Access, dismissed the Texas lawsuit as politics over rational policy. “It’s an act of political theater to protest over such a small number of vulnerable people coming to the U.S,” she said.

When deciding where a family will be resettled, federal officials take into consideration a number of other factors, including the location of existing family members in the U.S., cost of living, and employment possibilities.

More than 4 million Syrians have fled the country since the start of the civil war in 2011. Syria’s neighbors, including Turkey, Lebanon and Jordan, have born the brunt of the refugee crisis. Wealthy nations Europe have accepted millions of refugees as well. Germany expects to take in some 800,000 Syrians this year alone.

In the last four years, the U.S. has accepted about 2,200, with Texas taking a total of 243 Syrian refugees, more than any other state, according to the U.S. State Department. Obama has called for the U.S. to accept at least 10,000 more Syrian refugees over the next year.

The Texas lawsuit would specifically halt the resettlement of two Syrian refugee families slated to arrive in the next two weeks. One family of six—a man, along with his parents, wife, and two small children—are related to Faez and Shaza al Sharaa, who were recently profiled by TIME’s Alex Altman.

Like all refugees, the new family has been subject to extensive background checks, a process that includes up to nine different government agencies and generally lasts for up to two years.

Faez Sharaa, who recently welcomed a new baby, urged Americans to reconsider how they view Syrian immigrants. “I want them to know the Syrian people are not terrorists,” he told TIME. “We are against ISIS. We don’t support them. They are a criminal organization. Syrian citizens are the ones paying the price.”

Read Next: A Syrian Refugee Story

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Write to Haley Sweetland Edwards at haley.edwards@time.com