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The War on Immigrants

Why the courts can't save us.

On December 14, 1994, a federal judge in Los Angeles enjoined the state of California from enforcing Proposition 187, which would deny health, education and welfare benefits to illegal aliens and their children. The case eventually may reach the Supreme Court; and Governor Pete Wilson has called on the justices to overturn a 1982 decision, Plyler v. Doe, which held that a similar attempt by the state of Texas to throw the children of illegal aliens out of the public schools violated "fundamental conceptions of justice." In the meantime, Wilson says he wants to "send a message" to Congress about the need to share the costs of illegal immigration.

Congress has received a message; but not the one Wilson meant to send. Encouraged by polls showing rising hostility to aliens, House Republicans pledged, in their Contract with America, to cut off virtually all welfare benefits for legal immigrants who are under 75 years old. On January 9 Newt Gingrich said that he was ready to "revisit" this campaign promise; but other Republican leaders are standing firm. And, in any event, even if part of the contract is modified or abandoned, the political impulse behind it is not likely to disappear. The governors, furthermore, are still nervous. One effect of the proposal would be to shift even more of the costs of supporting legal immigrants onto the states, since the Supreme Court has said that states, but not Congress, must provide welfare benefits to citizens and aliens on equal terms. To complete the cycle of litigation, several states are now suing the federal government to recover the costs of supporting immigrants that Congress is frantically trying to avoid.

We are about to embark, in short, on a national cycle of nativism and legalism. But, if the country is to be saved from a nativist turn, salvation will have to come from Congress rather than the courts. For the Plyler decision, in which opponents of Proposition 187 are putting so much hope, is unconvincing as an act of constitutional interpretation, and the justices may well overturn it. And, on the national level, there is a long tradition of almost complete judicial deference to Congress in matters concerning the rights of aliens. If the Republicans decide, in the end, to carry out some version of their Contract with America, judges will not, and constitutionally should not, stand in the way.

Judge Mariana Pfaelzer's December decision in League of United Latin American Citizens v. Wilson is a preview of the legal theories that will keep Proposition 187 tangled in the courts for the next few years. By requiring state officials to verify the immigration status of aliens, she says, California has usurped Congress's exclusive authority over immigration policy. Cutting off aliens' health and welfare benefits without a hearing may deprive them of liberty and property without due process of law. The loss of medical services for aliens could threaten the health of citizens. But Judge Pfaelzer is most confident about the unconstitutionality of denying public education to undocumented children. On this point, she says, "there is a clear likelihood of success" for the plaintiffs, "because of the existence of Plyler v. Doe."

But what if Plyler were overturned? The original 5-4 decision hung by a thread, and of the original majority, only Justice Stevens remains on the Court. Moreover, because of economic and political changes in immigration policy over the past decade, the three reasons that Justice William Brennan offered to justify his decision are even less persuasive today than they were in 1982.

First, Brennan claims that visiting the sins of the parents upon innocent children violates "fundamental conceptions of justice." Of course states can withhold benefits from adults who have broken its laws, says Brennan; but children shouldn't be punished for their parents' crimes. As Peter Schuck of Yale Law School has argued, Brennan's distinction between innocent children and guilty parents makes little sense. Why is denying free education to an innocent child any more unjust or painful than depriving the parents of public benefits, such as afdc, that are earmarked for the innocent child's well-being? Isn't expelling the child from school less draconian than deporting him? As a policy matter, it may indeed be cruel and shortsighted to throw children onto the street, where they are more likely to commit crimes and become a burden on the state. But, as a constitutional matter, Brennan's " fundamental justice" standard is far too subjective to be convincing.

Second, Brennan relies, in his cost-benefit analysis, on empirical premises that are now inaccurate and outdated. "There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State's economy," Brennan announces breezily. "To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc. " Never mind the propriety of Supreme Court justices second-guessing the economic judgments of legislators. The data today present a very different picture.

In a study released last September, the Urban Institute estimated that 3.4 million illegal aliens lived in the United States in 1992; and 86 percent of them were concentrated in seven states: California, New York, Texas, Florida, Illinois, New Jersey and Arizona. The seven states spent nearly $4 billion on health care, education and incarceration for illegal aliens, while illegal aliens paid only $1.9 billion in sales taxes, property taxes and state income taxes. California, which has 1.4 million illegal aliens, one-third of the national total, is in an especially hard spot. During 1992 it spent $1.3 billion to keep 300,000 undocumented children in school (and another billion on Medicaid and prisons), while it collected only $732 million in taxes from illegal aliens.

How much of this loss is compensated by the economic expansion that accompanies immigration? The answer is hotly disputed, but most analysts believe the economic and tax benefits of legal and illegal immigration flow mainly to the federal government rather than the states. To make the burden on California and Texas even more unfair, Congress over the past decade has sharply reduced its already limited federal aid to immigrants. Meanwhile, the numbers of immigrants have risen to their highest levels in American history. (Nearly 10 million immigrants came during the 1980s, more than in any previous decade.) Since Plyler was decided, for example, federal spending on the only education grant program targeted at immigrant children has declined by 44 percent. These competing forces--high levels of immigration, declining federal aid to immigrants and judicial decisions that allow Congress, but not the states, to cut aliens off the rolls--created the economic and political frustration that bubbled over in Proposition 187. And they make clear that Brennan's hyperbole about illegal aliens not imposing "any significant burden" on state economies is too glib to accept.

Finally, Brennan relies heavily on Congress's purported policy of winking at illegal immigration. He makes much of the "lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens." He then refers to the uncertainty of the federal commitment to deport--he converts this into " an inchoate federal permission to remain"--and he concludes that state policies to crack down on undocumented aliens unconstitutionally conflict with Congress's more benevolent national policy.

Whatever can be said for this as a characterization of Congress's attitude in 1982, Brennan's argument is no longer tenable after the passage of the Immigration Reform and Control Act of 1986. The act made it illegal for employers to hire undocumented workers, and it fined employers who broke the law. The employer sanctions tend to undermine Brennan's notion that "charging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration" when compared with the alternative of prohibiting the employment of undocumented adults. And other features of the 1986 act, including increased appropriations for border patrols, make it even harder to argue that Congress is continuing to ignore the violation of immigration laws.

The collapse of all three of Brennan's arguments during the past decade may convince the justices to overturn Plyler when they get the chance. Indeed, Plyler ought to be overturned: in the Casey abortion decision, Justices O'Connor, Kennedy and Souter stressed that landmark constitutional cases are most vulnerable when intervening changes have called their premises into question. What's more, if the justices do choose to overturn Plyler, they will be acting within a well-established tradition of deferring to Congress and the states when public benefits are reserved for citizens rather than aliens. The truth is, for most of its history, the Court has rarely resisted upsurges of nativism.

For nearly a century, from the 1870s to the 1970s, the states passed a dizzying series of laws excluding aliens from an array of occupations--from optometrist, dentist and doctor to teacher, police officer and pool-hall operator. The anti-alien laws are a grim record of the country's anxieties throughout the century; but the Supreme Court, without blinking, let most of them stand. In 1915, for example, Benjamin Cardozo, then an appellate judge, upheld a New York law that forbade legal aliens from being employed to build the New York City subways. "To disqualify aliens is discrimination, indeed," wrote Cardozo, "but not arbitrary discrimination, for the principle of exclusion is the restriction of the resources of the state to the advancement and profit of the state. Ungenerous and unwise such discrimination may be, it is not for that reason unlawful."

There is a rosier account of constitutional history, one that celebrates the role of judges in protecting the rights of aliens, but it is far less reliable. Its most celebrated advocate was Alexander Bickel of Yale Law School. In an influential essay published in 1975, he declared that the distinction between the rights of citizens and the rights of aliens "plays only the most minimal role in the American constitutional scheme"; and he insisted that when Congress and the states, in periodic fits of nativism, have singled out aliens for disabilities the Supreme Court has saved the country from its worst instincts. "Citizenship," Bickel concluded, "is at best a simple idea for a simple government."

Despite his memorable aphorisms, Bickel's account of constitutional history is airbrushed and unpersuasive. For example, his notion that the original Constitution put the rights of citizens and aliens on the same level ignores Article iv, Section 2 of the Constitution, the so-called comity clause, which says that "the Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States." The main purpose of the clause was to ensure that a citizen of one state, when traveling to another, would be treated as a citizen rather than an alien. A lot rode on the distinction, because aliens had fewer common-law rights than citizens did. Most dramatically, aliens in many states were prohibited from owning land or inheriting real estate. As recently as 1948, the Supreme Court upheld a California law confining land ownership to citizens, and even today, seven states and the District of Columbia regulate the amount of land that aliens can own.

The Constitution itself, as William Rehnquist has noted, distinguishes between citizens and aliens no fewer than eleven times, in a document noted for its brevity. This is largely a legacy of the crisis over slavery. In 1857 Chief Justice Roger Taney held that Dred Scott could not sue for his freedom in federal court because the Constitution was a social contract made by and for citizens; and no black man, freedom or slave, could be regarded as one of the citizens for whom the Constitution was framed. In fact, Taney was probably correct to suggest that the Constitution used the phrases "We the people" and "citizens" as synonymous terms. It was Taney's historical claim-- that free blacks had never been considered citizens under the Constitution--that was demonstrably false.

In their effort to exorcize the Dred Scott decision after the Civil War, the Reconstruction Republicans inscribed a distinction between citizens and aliens into the Constitution for all time. After setting out a national definition of citizenship--"all persons born or naturalized in the United States ... are citizens of the United States"--the Fourteenth Amendment goes on to distinguish between the "privileges or immunities of citizens of the United States," which are denied to aliens, and the equal protection of the laws, which is extended to all persons, citizens and strangers alike. John Bingham, the author of the amendment, was dismissed by Bickel as a gasbag, "a man of enthusiastic rhetorical bent, on the whole of generous impulse, and of zero analytical inclination or capacity." In fact, Bingham was the James Madison of Reconstruction; and he had a coherent constitutional vision that centered on the meaning of citizenship.

The privileges and immunities of citizenship, Bingham thought, included the protections of the first eight amendments to the Bill of Rights, as well as-- this is relevant for Proposition 187--a broad range of other rights and benefits provided by the states, such as public education. Bingham also strenuously objected to the decision by a handful of states to allow alien suffrage in federal elections, arguing that "the sovereignty of America" should be reserved for citizens alone. As Jamin Raskin has demonstrated, the experiment fizzled after World War I; and Arkansas became the last state to revoke alien suffrage in 1926.

Although Bingham and the Reconstruction Republicans thought aliens could be denied the privileges of citizenship, including voting, serving on juries and inheriting land, they didn't believe aliens had no rights at all. All persons, whether citizens or strangers, were entitled to equal protection--equal enforcement and administration--of laws designed to secure their life, liberty and property. In practice, this meant that states were free to discriminate against aliens as long as they didn't single out certain classes of aliens for special indignities. And so when waves of attacks on Chinese immigrants swept through California in 1870, and the California legislature imposed a series of wildly discriminatory taxes on the Chinese, Congress passed a civil rights statute to extend to aliens the protection of the laws. "I am opposed to Asiatics being brought here," said the sponsor, Senator William Stewart of Nevada. But "while they are here it is our duty to protect them from barbarous and cruel laws that place upon them unjust and cruel burdens."

Over the past 100 years, California has passed a gothic variety of laws discriminating against aliens; but the Court has balked only when some aliens were discriminated against more than others. In the landmark Yick Wo case in 1886, for example, when the city of San Francisco refused to issue licenses to Chinese immigrants who wanted to run laundries, the Supreme Court didn't hesitate to find a violation of the equal protection of the laws. But the case involved discrimination against the Chinese, not discrimination against aliens in general, and the Court held merely that California had to treat all aliens equally badly. In 1948, similarly, the Court struck down a California law denying commercial fishing licenses to aliens who were ineligible to become naturalized citizens. But the subtext, again, was race discrimination: until 1952 Japanese immigrants were forbidden to naturalize under federal law, and California was quietly trying to discriminate against the Japanese.

All of this helps to put the judicial activism of the 1970s and 1980s into context. The meaning of American citizenship was transformed not only by Plyler v. Doe, but also by Harry Blackmun's decision in Graham v. Richardson, which held that states cannot cut off welfare benefits for legal immigrants. Far from being "the authentic voice of the American Constitution," as Bickel magisterially called it, the decision is hard to fathom. With virtually no analysis, Blackmun designated legal aliens a "discrete and insular minority," and he declared that all state laws distinguishing between aliens and citizens must be scrutinized as rigorously as possible. Blackmun's sweeping notion that aliens are a "discrete and insular minority," and that they need special protection from the political process, is puzzling. Since aliens have long been excluded from voting in federal elections, presumably they're not meant to be full participants in the political process. But the justices soon pulled back from Blackmun's extravagant rhetoric. In 1976 they held that Congress's plenary control over immigration gives it broad discretion to discriminate against aliens, and therefore it could restrict Medicare benefits to legal aliens who had lived in the United States for five years. " Citizens," the Court announced deferentially, "may reasonably be presumed to have a greater affinity with the United States."

This is the unbalanced and unstable state of the law as the new Republican Congress decides whether to embark on a national debate about the relative entitlements of citizens and aliens. States are generally forbidden to draw distinctions between citizens and aliens when it comes to public benefits; Congress basically has carte blanche to deprive aliens of whatever benefits it likes. So, if the Republican Congress does, in the end, choose to cut off benefits for legal immigrants, the Supreme Court almost certainly will not intervene.

Within the context of a century of anti-alien legislation, how radical would the Republican welfare proposal be? Remember that most legal immigrants are already barred from receiving most forms of welfare for their first three to five years in the country, because their sponsors' incomes are "deemed" to be theirs when determining eligibility for public benefits. In theory, legal immigrants can also be deported if they become "public charges" at any point during the waiting period, although this is rarely enforced. The public charge exclusion has been an important part of American immigration law since Colonial days: it was codified after the Civil War when Congress banned the landing of any "lunatic, idiot or any person unable to take care of himself or herself without becoming a public charge."

As Gerald Neuman of Columbia Law School points out, American immigration policy has long been committed to the idea that immigrants shouldn't come here to collect welfare; but it has also held that immigrants who come to work, but fall on hard times for reasons beyond their control, shouldn't be treated differently than citizens. The United States has always viewed itself as a country where immigrants who are poor can work to become rich; and so immigration policy has been far more concerned about excluding the sick and disabled than deporting or discriminating against the indigent. The Clinton administration's less draconian welfare reform, which would make it harder for elderly immigrants to apply for retirement benefits after arrival, fits comfortably into this tradition. But the unadulterated Republican proposal, which envisions systematic discrimination against legal aliens, would be a dramatic departure.

The only non-nativist case that can be made for reducing public benefits for legal immigrants has to do with incentives to naturalize. Almost all of the savings under the original Republican welfare plan--$22 billion over five years--would come from legal immigrants whose "deeming" period has expired. As Michael Fix and Jeffrey Passel of the Urban Institute point out, virtually all of these immigrants have lived here long enough to become citizens, and, by naturalizing, they could reclaim the benefits that they would otherwise lose. A ban on public assistance for aliens, therefore, would be a strong, if perverse, incentive for aliens to join the national community as fully participating members, and in this respect it would help to restore the value of citizenship.

The phrase "national community," however, is hard to write without irony. Alexander Aleinikoff, now the general counsel of the Immigration and Naturalization Service, has argued that the notion of a "national community" is either an oxymoron or an exercise in wishful thinking when applied to the United States, which is far too large and diverse to promote the kinds of mutual obligations that one usually associates with a genuine community. There is also something ugly about national legislation that proposes to inflate the value of citizenship in such a backhanded way, as the inadvertent side effect of budget cutting. Rather than paying for welfare reform on the backs of legal immigrants, Congress should debate immigration reform on its own merits.

The most likely effect of the Republican welfare proposal, in whatever form it is enacted, would be to shift the cost of supporting immigrants onto the already overburdened states. After living here for more than five years, legal immigrants are unlikely to leave; and, rather than starving in streets, they will apply for the assistance that the Supreme Court has required the states to provide. Just as Proposition 187 is, at bottom, a problem of federalism--California is balking at supporting illegal immigrants that Congress refuses to acknowledge or deport--the Republican welfare proposal would provoke similar populist revolts in the states. This is especially ironic, coming from a Congress that purports to be so hostile to unfunded federal mandates.

One way for Congress to avoid this mess is to adopt a mix of policies along the lines recommended by the bipartisan U.S. Commission on Immigration Reform, chaired by Barbara Jordan: an increased commitment to deport illegal aliens, combined with short-term federal "impact aid" to the most heavily burdened states, to offset some of the costs of illegal immigration. As for legal immigrants, it might indeed make sense to ensure that a sponsor's promise to support an immigrant is legally enforceable for five or ten years. This would fit nicely with Newt Gingrich's emphasis on individual responsibility as the bedrock of welfare policy. And it would enlarge the scope of the Contract with America, creating a real social contract between citizens and strangers, rather than a restrictive covenant for citizens alone.