To: House Government and Veterans Affairs Committee
From: Christopher T. Dodson, Executive Director
Subject: House Bill 1427 — determination of refugee absorptive capacity
Date: February 3, 2017

The North Dakota Catholic Conference opposes House Bill 1427 because (1) it violates the spirit of charity and justice that should permeate all of our legal and governmental policies, (2) it is constitutionally suspect, (3) it is poorly worded, confusing, unnecessarily intrusive, and discriminatory, and (4) there exist better means of addressing legitimate questions about refugee resettlement in our state.

Every law and policy should reflect principles of charity and justice. The actions of our government must remind people of our basic humanity. The Christian Church has always taught that this means that society, not just the church, must welcome the stranger and those in flight not as an option, but as a duty. We must, of course, be vigilant when it comes to security and preservation of the common good, but we must always be equally vigilant in our welcome of friends. When obstacles arise, we should not build barriers. Instead, we should remove the obstacles. House Bill 1427 does not remove barriers, it builds obstacles.

House Bill 1427 is at best constitutionally suspect and, at worst, outright unconstitutional. You will hear from others with more expertise in this area. We consulted the Catholic Legal Immigration Network, which concluded that HB 1427 violates the Refugee Act of 1980 in several respects and, therefore, is unconstitutional under the Supremacy Clause.

House Bill 1427 contains many undefined terms, confusing mandates, and avenues for government overreach. The problems and questions in this bill are too numerous to address here, so let me highlight just two of them.

Two sections (1) appear to authorize the collection of information from private entities about the services they provide to refugees, even if the entities are not refugee resettlement agencies. Bishop Kagan and Bishop Folda asked that I make this very clear: Neither the Diocese of Bismarck, nor the Diocese of Fargo, nor any parish, charity, or other organization under the auspices of the dioceses will comply with any request for this information.  To whom we provide charitable help is not the government’s business.

A second example is one that should concern all of us. House Bill 1427 gives a local government broad and un-reviewable authority to stop refugee resettlement. Setting aside the question of whether state or local governments have that authority under federal law and the U.S. Constitution, the bill should cause great concern to anyone concerned about civil liberties and due process.

The bill requires that the local government entity only hold a hearing and issue findings based on the “absorptive capacity” factors before blocking resettlement. It does not require that the local government actually find the existence of facts, reviewable by a court of law. Indeed, the definition of “absorptive capacity” includes factors so vague that they are not really measurable. This lack of precision violates due process and creates the possibility that resettlement could be halted solely for political, arbitrary, and capricious reasons. The potential for abuse is heightened by the bill’s exclusive focus on refugees at the exclusion of other classes of legal residents.

We do not question the need to discover and respond to the impacts, good or bad, from refugee resettlement. You cannot welcome a stranger into your home if you do not have a home. It is apparent that many North Dakotans have questions and concerns about refugee resettlement in the state. They deserve to have their questions answered. At the same time, immigrants should have a chance to tell their stories.

House Bill 1427 attempts to address those concerns but goes too far, raises too many constitutional questions, and unnecessarily expands the role of government. We suggest that a better approach would be to take the legitimate requests for information in HB 1427 and incorporate them into an interim study that would also include a review of the relevant law, an examination of impacts of resettlement — good or bad — and an opportunity for all stakeholders to present information to the Legislative Assembly.

In its current form we urge a Do Not Pass recommendation on House Bill 1427.

1. HB 1427, page 3, line 11; page 4, lines 13-14.