An Ann Arbor-based public interest law firm, the Thomas More Law Center, along with Caledonia-based Bursch Law PLLC, has been representing the state of Tennessee’s general assembly in a case opposing the federal government’s refugee resettlement efforts since 2016.
Tennessee, much like other states around the country, has received an influx of refugees in the last decade, averaging around 1,000 refugees per year, largely from conflict-ridden areas such as Iraq and Sudan. In 2017, the state legislature refused to provide funds for Medicaid for settled asylum-seekers and sued the federal government.
After Tennessee’s attorney general declined to litigate the case on behalf of the Republican-held general assembly, TMLC, a self-identified Christian, conservative law firm, took up the case.
In July, the Sixth Circuit Court denied Tennessee’s case on the basis of standing. In other words, the plaintiffs had not suffered any measurable damages from the refugee resettlement program.
As Judge S. Thomas Anderson of the Sixth Circuit put it, Tennessee’s damages were “speculative,” and only contingent upon the state not adhering to federal statute.
“They just basically said, ‘Well, the general assembly does not have a right to bring the lawsuit in the first place,’” Richard Thompson, TMLC’s president and chief counsel, said in an interview with The Daily.
In early September, TMLC filed a petition for a rehearing by the Sixth Circuit, calling their verdict “painfully at odds” with the Supreme Court precedent.
Thompson said his organization saw the federal government’s requirement of the state to afford refugees Medicaid as an infringement on Tennessee’s right to spend revenue in a way it sees fit.
John Bursch, the former Michigan solicitor general and founder of Bursch Law PLLC., delivered the argument on behalf of the plaintiffs in July. In addition to crafting TMLC’s case, Bursch is currently preparing for a separate argument in front of the U.S. Supreme Court, defending a Michigan funeral home in a case regarding transgender employment discrimination.
Bursch said TMLC’s petition is based on the 10th Amendment precedent that grants the states any powers not expressly given to the federal government.
“The petition for rehearing en banc asks whether a state legislature has the ability to bring a lawsuit to challenge an action by the federal government that interferes with the legislature’s authority,” Bursch said in an email interview Friday. “Here, the federal government has compelled the State of Tennessee to pay for a program from which Tennessee has withdrawn.”
TMLC’s case has generated controversy from immigrants’ rights advocates in the area. Law student Kerry Martin, an immigration representative at the Michigan Immigration and Labor Law Association, says Tennessee’s use of the 10th Amendment as a basis to nullify an order from the federal government is invalid.
“There’s a lot of ways the federal government can use its power to affect what the states do,” Martin said. “They’re definitely not independent entities. But there are some areas where if the federal government coerces or commandeers state power, quote unquote, then that comes into violation.”
LSA senior Ayah Kutmah, co-president of the Michigan Refugee Assistance Program, said helping refugees resettle benefits the states they moved to in the long run.
“It’s actually in their best interest that they do,” Kutmah said. “Now, these refugees are able to actually integrate into society and become able bodied working individuals who contribute back to society. Obviously, you’re not able to do that without any state sponsorship, especially medically when it comes to health care.”
While the Tennessee case has brought TMLC increased public attention, the group has litigated dozens of cases, notably representing several New Jersey residents who opposed the construction of a mosque and Muslim community center in Bernards, N.J. The organization is a nonprofit and received $1.6 million in private donations last year.
Also central in the creation of the organization was Tom Monaghan, Domino’s Pizza founder and former Detroit Tigers owner, who has been involved in various other Christian-based ventures, including the foundation of Ave Maria College in Ypsilanti, Ave Maria School of Law in Naples, Florida, and even a Florida town based in Catholic values, currently under development.
“Most of our cases deal outside the state of Michigan, they’re mostly in federal courts, although we’re located in Ann Arbor township at the Domino’s Farms complex,” Thompson said. “We do get involved in a lot of, I would say, controversial cultural issues.”
TMLC is not Ann Arbor’s only self-identified Judeo-Christian-interest law firm — the local American Freedom Law Center made headlines earlier this year for being placed on the Southern Poverty Law Center’s annual “hate map” of American organizations classified as hate groups.
Thompson is familiar with the organization, and said the group’s co-founder, Michigan lawyer Robert Muise, was formerly a senior trial counsel at TMLC for 12 years, before founding the AFLC with lawyer David Yerushalmi.
Kutmah said she was not entirely surprised to hear of conservative Christian law firms based in Ann Arbor.
“A lot of people might think and say, ‘Oh, Ann Arbor is liberal bubble in the Midwest,’ or something like that but these bubbles are not uniform,” Kutmah said. “There’s always going to be actors or organizations or things that might display an interest in or lobby for things that are against what the general people (support)… I don’t think it’s necessarily just because we associate a state or a city as having one type of ideology that everyone in there is uniform.”
In its role representing Tennessee, TMLC’s legal argument takes issue with more than overuse of federal power. The Tennessee lawsuit refers to the Refugee Resettlement Act of 1980, a law that was crafted to create a uniform system for admitting refugees into the United States.
At the time, many immigrants from South Asia and the Soviet Union were seeking asylum, and the new policy would allow one refugee to resettle in an area for every 4,000 Americans. TMLC labels the bill as an unconstitutional abuse of power, allowing the federal government to commandeer funds for resettlement from the states.
Michigan Immigration and Labor Law Association’s Martin noted that other lawsuits have argued about the federal government’s right to withhold funding, including the 1987 case of South Dakota v. Dole, where the court upheld the federal government’s ability to block funds for a state’s highway construction and maintenance if the state would not raise the drinking age to 21. Martin says a similar precedent for federal spending power was set several years ago, and involved the passage of the Affordable Care Act, often referred to as Obamacare.
According to Martin, this precedent makes it difficult for Tennessee to build a viable case on the basis of the 10th Amendment.
“Absolutely the government can use its Medicaid spending to require that states receiving federal Medicaid funds pass those funds on to resettled refugees,” Martin said.
But for all of Tennessee’s opposition to Medicaid expenditures, the state stands to lose far more by not complying, Martin said. Should the state not provide Medicaid to resettled refugees, a March 2018 ruling from the federal court in Jackson, Tennessee estimated it could lose up to $7 billion annually in federal health care funds.
“They listed in their lawsuit, this is their big complaint, the state of Tennessee: that we have to pay $20 million towards refugee Medicaid expenses in addition to some other expenses like, God forbid, interpreters in the public schools,” Martin said. “$20 million. This is a state with a massive budget.”
Additionally, Martin argues in the wake of the Resettlement Act, Tennessee had few or no objections to taking in asylum seekers, often from Eastern Europe or the Soviet Union. He says this fact alone hints that Tennessee and TMLC’s fervent opposition to the inflow of refugees is based on more than just paying for their Medicaid expenses.
“You’ve lived with this law until, what, the year 2017?” Martin said. “37 years. And now you’re saying this is a commandeering of your funds?”
Kutmah said prejudice often plays a role in some of the rhetoric used to describe refugees.
“For humanitarian reasons, I think it's morally atrocious that you're closing a door on a threatened group of people,” Kutmah said. “… (Refugees) are what make these communities vibrant, provide the jobs that are needed. Again, like you have the added cultural heritage and diversity, which always increase the economic and cultural strength of any city or state.”