A Biden Appointed District Judge Has Hijacked POTUS Control Of A Refugee Program -- He Says He Knows Better What Congress Wanted

Another effort by the Biden-Appointed Imperial Judiciary to Control the Executive when Changes by the Trump Administration Upset Expectations.

On February 25, 2025, a District Judge in Seattle granted a Preliminary Injunction halting the enforcement of an Executive Order suspending a refugee admissions program created by Congress. He characterized the action taken by Pres. Trump as follows:

Hours into his second term, President Trump issued Order 14163, “direct[ing] that entry into the United States of refugees under the [United States Refugee Assistance Program (USRAP)] be suspended” indefinitely pending a determination by the President that “resumption of entry of refugees into the United States under the USRAP would be in the interests of the United States.”

This particular program did not involve providing housing or other assistance to illegal aliens coming into the country as a result of the Biden Administration’s “open border” policy. The refugee program in question was created by Congress in the Refugee Act of 1980 and involves a formal application process to be granted “refugee” status, which then provides access to various federal and state resettlement programs those who are lawfully admitted as recognized “refugees” from their home countries.

In suspending the program via an Executive Order, President Trump cited his authority to do so under 8 U.S.C. 1182(f) and 1185(a), part of the statutory framework whereby Congress created the program.

Section 1182(f) states as follows:

(f) Suspension of entry or imposition of restrictions by President.

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Section 1185(a) states as follows:

(a) Restrictions and Prohibitions: Unless Otherwise ordered by the President, it shall be unlawful —

(1) for any alien to … enter or attempt to … enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe;

This is not new ground being explored by the Trump Executive Order. In 2017 President Trump entered a very similar Executive Order relying on the same provisions, and disputes over that Order made their way to the Supreme Court in the case of Trump v. Hawaii. In reversing the Ninth Circuit in that case — which had affirmed a Preliminary Injunction issued by a District Judge in Hawaii on the so-called “Muslim-ban” — the Supreme Court described Sec. 1182(f) as follows:

By its terms, § 1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry ([w]henever [he] finds that the entry" of aliens "would be detrimental" to the national interest); whose entry to suspend ("all aliens or any class of aliens"); for how long ("for such period as he shall deem necessary"); and on what conditions ("any restrictions he may deem to be appropriate"). It is therefore unsurprising that we have previously observed that § 1182(f) vests the President with "ample power" to impose entry restrictions in addition to those elsewhere enumerated in the INA.

District Judge Jamal Whitehead in the Western District of Washington has found that the Executive Order suspending the refugee program exceeds this expansive power primarily because it is “indefinite.” He deems a consequence of that feature to be that it would allow a President to wipe out the program entirely by simply treating it as if it no longer exists with an “indefinite” suspension. But that would substitute the Executive’s view of the merits of having such the program in place of the Congress’s view of the merits of having such a program found in the fact that Congress created the program in the first instance.

Judge Whitehead was appointed to the Seattle Court in March 2023 — just two years ago.

The mechanics of the refugee program involve a determination by the Executive as to maximum number of refugee admissions each year. Before the start of the fiscal year, the President must engage in appropriate “consultation” with Congress — as defined by the statute — about the anticipated level of refugee admissions that will be needed in the upcoming fiscal year. For 2025, the Biden Administration determined that 125,000 refugees “should be admitted” — according to the District Judge.

By comparison, the Trump Administration set the maximum at 45,000 for 2018; 30,000 for 2019; 18,000 for 2020; and 15,000 for 2021.

This is one use of quite “slippery” language by Judge Whitehead in his Order — there are others. The statute does not speak to the President determining how many refugees “should be admitted” — the statute speaks to number of refugees who “may be admitted” during the upcoming fiscal year — i.e., a maximum number. This reading is reinforced by the fact that for the first three fiscal years after the program was established— 1980 to 1982 — the statute set the “maximum” number at 50,000.

The statute also allows for a Presidential determination made during the fiscal year that an emergency or other unforeseen circumstance requires increasing the authorized number of admissions above the maximum number that was set at the outset of the fiscal year. Both the setting of the maximum number at the start of the fiscal year, and any increase in the maximum due to events happening during the fiscal year, require the appropriate “consultation” with Congress as defined in the statute.

Judge Whitehead points to this “consultation” requirement as part of a “structure [that] reflects Congress’s intent that refugee admission decisions involve both political branches, not unilateral executive action.”

Because the fiscal year began October 1, Judge Whitehead noted that approximately 30,000 refugees had been admitted as of December 31, 2024, a pace of about 10,000 per month, reflecting a rate matching the decision made by the Biden Administration after consulting with Congress that 125,000 was the maximum for this fiscal year.

The District Judge next described in some detail the careful “vetting” and “assistance” processes that are in place as part of the refugee actually being cleared for admission. This seems to be for the purpose of distinguishing this program from the open border policies that allowed illegal aliens to indiscriminately cross into the United States — and then remain — with little or no vetting and a largely ad hoc approach to how to support them once they arrived on the streets of cities across the country. This section of his Order reads like an effort to defend the refugee program as “good” immigration policy, as contrasted with the chaos produced by the open border policy.

[T]he transportation, admission, and resettlement processes are governed by a detailed statutory and regulatory scheme, jointly administered by PRM and ORR. This scheme … relies on “cooperative agreements” with nonprofit agencies, who receive federal funds from PRM to deliver statutorily mandated resettlement services…. The resettlement agencies are responsible for providing initial reception and core services to arriving refugees… These national resettlement organizations maintain a nationwide network of approximately 355 affiliated offices in 226 communities to provide services.

Once in the country, refugees receive statutorily authorized support services—including employment training and placements, direct cash support, and English-language training—from their sponsoring resettlement agency or its affiliates…. Those agencies use federal funding, private donations, and volunteer support to facilitate effective resettlement with the goal of placing “employable refugees . . . on jobs as soon as possible after their arrival” to cultivate “economic self-sufficiency.” These agencies also assist refugees in adjusting their status to obtain permanent lawful residence within one year of entry.

Who would be shocked to learn that three of the twelve plaintiffs in the case are NGO’s who receive federal funds as part of this program? From the Complaint:

Plaintiffs HIAS, Inc. (“HIAS”) and Church World Service, Inc. (“CWS,” and together with HIAS, the “Plaintiff Resettlement Agencies”) — … organizations that receive a majority of their funding from the federal government — are already struggling to keep their lights on and their staff employed…. The Resettlement Support Centers administered by HIAS (in Vienna, Zagreb, and Tel Aviv) and CWS (in Nairobi) have been completely defunded and dismantled by the notices of suspension and stop-work orders issued by the State Department, in spite of standing cooperative funding agreements with that department. Thousands of employees at the Plaintiff Resettlement Agencies, at the Resettlement Support Centers that they administer overseas, and in their U.S. networks of local affiliates have been furloughed and laid off already— with more to come.

HIAS and CWS partner with affiliates that form the backbone of the domestic infrastructure supporting refugee resettlement in this country. They are the local entities who have built up strong relationships over decades with state and local governments and local service providers, employers, schools, landlords, and others who are crucial to the effective integration of refugees into their new communities. Affiliates across the country are now facing imminent closure. This infrastructure, once lost, cannot be easily rebuilt. Plaintiff Lutheran Community Services Northwest (“LCSNW”) is among these affiliates and is facing significant staff layoffs and curtailment of vital services.

It is transparent that this case is not so much about the Trump Administration limiting the number of refugee admissions over some period of time, it is about the potential collapse of all/parts of the NGO infrastructure that has been created with an uninterrupted flow of federal dollars along with all the job losses that might flow from that in both the U.S. and abroad. And those are just 3 NGOs who are part of this ecosystem created to feed at the federal trough as part of operating this program.

The District Judge’s Order next turns to the Executive Order suspending the refugee admissions program, and explains how the justification for the suspension is linked by the EO to the consequences — from the President’s perspective — of the unrestrained illegal immigration caused by the Biden Administration’s open border policies.

The Order begins by asserting that “over the last 4 years, the United States has been inundated with record levels of migration, including through the U.S. Refugee Admissions Program (USRAP).” Based on these alleged circumstances, the USRAP EO concludes that the “United States lacks the ability to absorb large numbers of migrants, and in particular, refugees, into its communities in a manner that does not compromise the availability of resources for Americans, that protects their safety and security, and that ensures the appropriate assimilation of refugees.”

“Alleged circumstances”?!?! This is a stunning usurpation of the Executive’s prerogative to recognize and diagnose a ill-advised policy pursued by the prior Administration. Judge Whitehead disagrees? So what? Who voted for him?

But in the next breath he disparages the legitimate exercise of Executive authority:

The USRAP EO also establishes a review process requiring the Secretary of Homeland Security, in consultation with the Secretary of State, to submit a report to the President … within 90 days “regarding whether resumption of entry of refugees into the United States under the USRAP would be in the interests of the United States …. It requires further reports “every 90 days thereafter until [the President] determine[s] that resumption of the USRAP is in the interests of the United States.” Thus, the President’s say-so is the only way USRAP can resume.

The President’s “say so”? Unlike Judge Whitehead, the President received 77 million votes.

Similar to the USAID funding cases, one issue raised by the plaintiffs that engenders some sympathy is their claim that when funding for the programs was suspended, that included funding of costs of services rendered by them in November and December. The edge may be taken off the claim in the same manner as it happened in the USAID cases — i.e., if the contracts providing for the funding expressly allow for suspension of payments pending audit or verification of the services rendered as reflected in the invoices. If those are the terms as agreed upon, then the potential consequences of a pause in funding are something the vendor agreed to assume.

The District Judge next turns to the scope of the President’s authority over immigration issues — as delegated to him by Congress. He address Trump v. Hawaii, but comes to the conclusion that the Executive authority over immigration isn’t “boundless.” It runs up against its outer limits if the EO “expressly override(s) particular provisions of the INA.” Citing a Ninth Circuit decision after Trump v. Hawaii, the District Court stated: The President may not invoke Section 1182(f) to “eviscerate” an entire “statutory scheme….”

This executive action unlawfully “countermand[s] Congress’s considered policy judgment[],”… that allowing refugees into the country is in the United States’ interest, thereby “reversing course on legislatively enacted policy in its entirety” and “‘eviscerate[ing]’” it.

The USRAP EO exceeds the “textual limitation” imposed by Section 1182(f) requiring that suspensions on entry be temporary or conditional in nature…. As the Supreme Court recognized in Hawaii III, Section 1182(f) allows the President to “suspend” entry “for [a] period”— not to terminate entry. The term “suspend” means “to cause to stop temporarily,” Suspend, Merriam-Webster Dictionary (2019), or “connotes a deferral till later,” suggesting a finite interruption rather than permanent cessation.

Well, all that seems very sensible.

Until it runs into the following comments by the Supreme Court in Trump v. Hawaii:

The sole prerequisite set forth in §1182(f ) is that the President “find[ ]” that the entry of the covered aliens “would be detrimental to the interests of the United States.”

We agree with plaintiffs that the word “suspend” often connotes a “defer[ral] till later….” But that does not mean that the President is required to prescribe in advance a fixed end date for the entry restrictions. Section 1182(f ) authorizes the President to suspend entry “for such period as he shall deem necessary.” It follows that when a President suspends entry in response to a diplomatic dispute or policy concern, he may link the duration of those restrictions, implicitly or explicitly, to the resolution of the triggering condition…. [N]ot one of the 43 suspension orders [under § 1182(f)] prior to this litigation has specified a precise end date.

Judge Whitehead can certainly read — he doesn’t ignore this passage from the Supreme Court’s opinion. But, without the benefit of any citation to authority, he claims that “there must be some temporal limitation” in the form of a recognition or explanation in the EO that when the condition causing the need for the suspension resolves the refugee program will be resumed.

In other words, “indefinitely” can’t mean “indefinitely” — it can only mean “almost indefinitely — with some end in sight.” That’s not a direct quote of Miracle Max, but it close:

"It just so happens that your friend here is only mostly dead. There's a big difference between mostly dead and all dead. Mostly dead is slightly alive".

Finally — for this article — I don’t see any analysis in the District Judge’s Order of the provision in the Executive Order that allows for continued refugee admissions on a “case-by-case” basis. Section (c) of the Executive Order reads as follows:

Notwithstanding the suspension of the USRAP imposed pursuant to subsections (a) and (b) of this section, the Secretary of State and the Secretary of Homeland Security may jointly determine to admit aliens to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such aliens as refugees is in the national interest and does not pose a threat to the security or welfare of the United States.

The “refugee program” — USRAP — in the Immigration and Nationalization Act at 8 U.S.C. Sec. 1157 sets up, by its own terms, a process that involves individual applications and a case-by-case review of whether to grant the refugee applicant admission into the United States. Subsection (c) of the Executive Order suspending USRAP and its process for setting the maximum number of maximum refugee admissions on an annual basis after consultation with Congress, etc. — still allows a case-by-case consideration and admission of aliens as refugees. So, Judge Whitehead’s conclusion that the Executive Order “countermand[s] Congress’s considered policy judgment[],”… that allowing refugees into the country is in the United States’ interest [and] thereby “reversing course on legislatively enacted policy in its entirety” and “‘eviscerate[ing]’” it, seems difficult to square with the the fact that the Executive Order allows for the continued admission of refugees in the interests of the United States.

The issues addressed above only covers about the first half of the District Judge’s opinion. The second half deals with claims raised in the complaint alleging violations of the Administrative Procedures Act in the manner in which the Executive Order directed the involved government agencies to act. That topic is beyond the points I’m making here.