Gov. Davis Should Do the Right Thing on Prop. 187

Gov. Gray Davis is equivocating over whether to continue the appeal of Proposition 187. He should drop the case. It is salutary for a governor to be deferential to the will of the people expressed in initiative, except, of course, when the people themselves have acted in disregard of the Constitution. Davis is suggesting that it is up to the Supreme Court to ultimately decide the legality of Proposition 187's mean-spirited attempt to deny health and education benefits to, among others, the children of illegal immigrants.

But this fundamentally misunderstands both the authority of the people and their courts. As Alexander Hamilton instructed in Federalist No. 78, "until the people have, by solemn and authoritative act, annulled or changed the established form, [the Constitution] is binding upon themselves collectively, as well as individually."

Unelected federal judges should be reluctant to set aside democratically chosen policies under the guise of interpreting the law. But no legislative act, whether originating in representative chamber or voting booth, has validity if it is contrary to either constitutional right or structure. Proposition 187 managed to offend both, and U.S. District Judge Mariana R. Pfaelzer's opinion voiding most of Proposition 187 merits no continued appeal or further waste of taxpayer time and resource.

A meticulous and balanced ruling, Judge Pfaelzer enjoined all but two sections of the proposition. The enforceable provisions punish the manufacture and use of false citizenship documents. Despite overstated arguments that criminalizing this dishonest conduct would undermine immigration policy, Pfaelzer reasoned that punishing the deceptive "can hardly be said to be a determination of who should or should not be admitted in to the country."

But the rest of Proposition 187 was a different story. Proposition 187 turned local police officers, state health and welfare administrators and teachers into immigration police. This seriously encroached on federal authority. Under the Constitution, the federal government is given the exclusive power to regulate immigration, and Proposition 187's attempt to overlay additional state-created classifications differentiating between "citizens," persons "lawfully admitted" and still others only "lawfully present," unnecessarily complicated the nation's legitimate interest in the control of its borders. As Pfaelzer concluded, Proposition 187 conflicted with federal law since its "classification provisions create[d] an entirely independent set of criteria to classify individuals based on immigration status."