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NEWS ANALYSIS : Experts Say Suit Over Immigrant Costs Will Fail


Some scholars expect a similar challenge to the recently passed Brady Bill, which requires the states to impose waiting periods on the purchase of handguns and conduct background checks on the potential buyers.

In both these instances, the federal requirement on the states is explicit. California, in contrast, is arguing that the federal government, by its inaction on immigration, is forcing the state to spend money it would rather use for other purposes.

Unlike the other cases, where states have asked the court to stop the federal government from doing something, California wants the court to require action on the part of Congress.

"The Constitution is a set of limits on the government," said Julian Eule, a UCLA law professor. "When you seek to force the government to do something, you are treading on some fairly thin ice. I don't see how you can come along and force the government to dole out this money."

Deborah Merritt, a University of Illinois law professor, said California's claim would be a "dramatic leap ahead, a shift in what the court has done so far."

The federal government, she said, probably could open its borders to everyone and not be liable for the added state costs. By extension, it is not likely to be held responsible for failing to stop those immigrants it says it would like to keep out.

An advocate of states' rights, Merritt wrote a paper cited by the court in the 1992 New York decision. In her paper, Merritt argued that the states are guaranteed a Republican form of government, "where the (state) government is responsive to its people, not some outside (federal) government."

Although Merritt said she doubted that kind of case could be made by California, Brown said that is precisely the line of reasoning California will pursue.

"We're trying to say that the process can fail even when it seems to be working," said Brown. "If the decisions you make don't impose the costs directly on the people who elect you, then you are not politically accountable."

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