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Judge Napolitano: States Cannot ‘Refuse’ Refugees Under Federal Law

Judge Andrew Napolitano claimed that when it comes to immigration, naturalization and foreign affairs, the federal government trumps the states under U.S. law, "even though by doing it, it can force the states to spend money that they don't want to spend, for a cause that's not politically popular."

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While governors in at least 30 states have responded to recent terrorist attacks in Paris by saying that their states will not accept Syrian refugees, their refusal of refugees may not agree with federal law.

Judge Andrew Napolitano, the senior judicial analyst for Fox News, told Stuart Varney on Fox Business Networks’s “Varney & Co.” on Tuesday that while governors can legally say they don’t want to accept refugees, they can’t legally interfere with the process under federal law.

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[pull_quote_center]They can legally say what they want, but they can’t really interfere with what the federal government does. I say this because my heart is with the governors, but nevertheless, the court has ruled that the admission of immigrants – whether for humanitarian purposes, political asylum purposes, or pursuant to the quotas that we have – is strictly a federal function.[/pull_quote_center]

As of Tuesday night, 31 states have opposed acceptance of Syrian refugees. Out of those states, which “range from Alabama and Georgia, to Texas and Arizona, to Michigan and Illinois, to Maine and New Hampshire,” only one does not have a Republican governor, which is New Hampshire.

[POLL: Should the United States Accept Syrian Refugees?]

Napolitano noted that President Obama currently has the same authority President George W. Bush had in 2005, when he had the power to accept migrants during the invasions of Iraq and Afghanistan with “no numerical cap.”

“In 2005, in response to the wave of migrants from the invasions in Afghanistan and Iraq, the Congress gave President George W. Bush unlimited – by which I mean there’s no numerical cap – authority to admit people for humanitarian purposes,” Napolitano said. “President Obama has that authority.”

Varney asked whether the states can say, “no, we’re not paying for this,” if they are forced to take in refugees.

“Here’s the way it would work,” Napolitano replied. “The president orders the Department of Homeland Security to admit people to federal facilities located within the states. If these people leave the federal facility, then they are entitled to the same social safety net that the states make available to everybody. That’s public schooling, housing assistance, living assistance.”

[RELATED: Reality Check: U.S. Policies In Middle East Responsible For Refugee In Europe]

Napolitano noted that the issue of accepting refugees from countries such as Syria, is different than the predicament the U.S. was in, in 2012, when President Obama signed a series of executive orders saying, “we’re going to admit large numbers of undocumented children, and we’re going to let those who are already here, stay here.”

Napolitano said that while the states were convinced at the time that it was a way of Obama forcing them to spend money, “that we haven’t budgeted and that we don’t have, to sew into a plan that he concocted that was rejected by the Congress,” this is a different scenario.

“Here, he has the absolute lawful authority – may not like the way he’s exercising it, but he has it,” Napolitano said, “to admit people for political asylum and humanitarian purposes.”

[pull_quote_center]The concept of immigration, naturalization, foreign affairs, is not a state issue under our system. The federal government trumps the states, even though by doing it, it can force the states to spend money that they don’t want to spend, for a cause that’s not politically popular.[/pull_quote_center]

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