- - Monday, October 2, 2017


President Trump last week announced that he will limit the number of refugees allowed to enter the U.S. in fiscal 2018 to 45,000. This is huge swing from President Obama’s “refugee cap” of 110,000 for the current fiscal year — a cap that was subsequently lowered to 50,000 by the Trump administration.

Mr. Trump’s new number is getting a lot of discussion in Washington: Is 45,000 too low? Too high? Just right? What’s sadly lacking is a serious discussion about how we got to that number or to Mr. Obama’s 110,000 figure.

Federal law gives the authority “to fix a number of refugees to the U.S.” to the president — but only “after appropriate consultation.” And what is “appropriate consultation”? The law defines it as having various administration officials talk to members of the Senate and House judiciary committees.

That’s it. Clearly, this consultation “process” is really more of a formality than firm requirement that the president actually listen to congressional advice.

And so, in September 2016, Obama administration officials went to “consult” with the judiciary committees. At the time, many Republicans were openly expressing concern about the refugee system. They were also in the majority of both committees. But unless they somehow forgot to mention their concerns during the consultation, the administration simply ignored the lawmakers and raised the refugee cap to where they wanted it.

Similarly, the consultation process appears to have been very pro forma under the Trump administration. The White House figured out what number it wanted and scheduled a last-minute consultation with Congress to tell lawmakers what its decision was.

Under this “process,” the refugee numbers ultimately hinge on just one thing: who controls the White House. The consultation with Congress is everything that Americans have come to hate about Washington — a dog-and-pony show where no policy is sincerely discussed or made. One side will cheer the decision made by the executive branch; the other will condemn it, and we’ll repeat the whole charade next year.

It’s time to change that.

Rather than continue to give the executive branch all the power in setting refugee quotas, Congress should reclaim some of its authority. While the executive branch should continue to play a leading role, Congress should have a real say.

One way to do this is for Congress to set a floor and ceiling for refugee admissions based on historical admissions. For example, over the past 20 years, the U.S. admitted an average of a little over 61,000 refugees annually. Throw out the four highest numbers and the four lowest, and you get a “normal” range of 53,000 to 73,000 refugees per year.

Why not leave the president free to set refugee levels within this historical range but require that any cap outside this range be submitted to Congress for approval? This would maintain the president’s authority to prescribe “normal” limits on refugee intake but give the people’s representatives a meaningful say in the matter whenever a president wants to go historically high (as Mr. Obama did for fiscal 2016 and 2017) or low (as Mr. Trump has done for fiscal 2018).

After all, if it is so clear to the administration that the U.S. needs to be taking many more or many fewer refugees, then it should be clear enough for Congress to debate and vote on as well.

This policy change will, at times, frustrate those who favor significantly more — or significantly fewer — refugees. But that’s a good thing. For significant changes, Congress should have the final say. Reforming the consultation process will mean that Congress can no longer be ignored when making big changes to refugee levels.

Both political parties condemn executive power when they do not have it. The solution, then, is to restore Congress’ power over policy matters. The refugee consultation process a great place to start.

David Inserra is a policy analyst specializing in homeland security issues in The Heritage Foundation’s Davis Institute for National Security and Foreign Policy.

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