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

Politics: It's his duty to drop the appeal of this ungenerous, albeit popular, measure.

April 02, 1999|DOUGLAS W. KMIEC | Douglas W. Kmiec holds the Caruso Family Chair in Constitutional Law at Pepperdine University

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."

The most controversial part of Proposition 187 was its denial of health care services and public elementary and secondary education to undocumented alien children who have little, if any, control over their status. Again, this provision unwisely conscripted nurses and teachers into the immigration service, and to some degree directly contradicted various federal statutes. Beyond this, this aspect of 187 contradicts Supreme Court precedent.In Plyler vs. Doe (1982), the Supreme Court decided unmistakably that equal protection under the Constitution is a promise made to all persons, not merely citizens. To survive review, classifications drawn in law must have some rational basis, but the Supreme Court recognized that it is "difficult to conceive of a rational justification for penalizing these children" for the actions of their parents. As concurring Justice Lewis Powell elaborated, reflecting on the inhumanity of denying basic education: "[A] legislative classification that threatens the creation of an underclass of future citizens and residents cannot be reconciled with one of the fundamental purposes of the 14th Amendment."

Like every state, California is struggling to make the best of its educational and other scarce resources, but unlike other states, California bears the costs of both legal and illegal immigration disproportionately. The people of California were persuaded in Proposition 187 to adjust that imbalance, not through a proper reallocation of federal monies, but with an intemperately erected "keep out" sign. Proposition 187 is an affront to the vast contribution of character and commerce of especially Mexican and Latino immigrants to California. In the shadow of generous "guest worker" regulations that invited our foreign neighbors to come as a source of cheap labor, 187 was as self-interested as it was ungenerous.

Gray Davis knew that as a candidate. It is his duty now to say so definitively as governor. Lest his courage be failing him because nearly 60% of California voters once approved Proposition 187, he should recur to Hamilton's observation that violations of the Constitution are not sustainable or appealable even when they stem from "a momentary inclination . . . instigated by the major voice of the community."

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