California's Proposition 187 and Its Lessons

By Stanley Mailman

New York Law Journal (p. 3, col. 1)

January 3, 1995

THE YEAR 1994 ended with immigrants a much maligned species. No longer is the welcome mat out for ``your tired, your poor, Your huddled masses . . . .''*1 Foreigners are less welcome precisely because they are perceived as tired and poor and huddled when the public identifies poverty with indolence and sees the barrio as the cause of many ills.

Significantly for the shape of legislation to come, that perception is shared by state legislators and members of Congress. A recent cover story for Time, entitled ``Down on the Downtrodden,'' quotes an influential member of the new Congress as saying: ``The inscription at the base of the Statue of Liberty was written before welfare . . . . People [back then] came to this country to work.''*2 Bills to reduce annual immigration will soon be in the hopper, and aliens already here may be targeted for some of the inevitable cutbacks in aid to the poor.

As members of Congress decide how to trim expenditures from public assistance programs and other publicly funded services, they should take a broad view. It makes little sense to legislate in this area without an eye to the immigration laws and policies under which the affected aliens are here; and the reduction of federal programs is no saving if it simply shifts their costs to the states and communities where the aliens and their families live. At the same time, state legislatures, frustrated with federal policies and programs, should stifle the temptation to compete with Congress's role in controlling the borders.*3

Out of just such frustration, the voters of California enacted Proposition 187 on Nov. 8. That statute is a dramatic effort to drive out undocumented aliens and to deter their entry by cutting them off from medical and other public services and depriving their children of an education.*4 (It was described in the official ballot argument as ``the first giant stride in ultimately ending the ILLEGAL ALIEN invasion.''*5)

The statute was immediately attacked as unconstitutional in several lawsuits, and its operation shackled by restraining orders. On Dec. 14, U.S. District Court Judge Mariana R. Pfaelzer of the Central District of California issued an oral decision to enjoin the major provisions of Proposition 187 until trial.*6

Constitutional Violations

Based on the judge's statement, the written decision/order, when issued in January, will find that much of the statute violates two of the provisions of the Constitution -- (1) the Supremacy Clause,*7 by stepping on ground preempted by federal immigration law; and (2) the Fourteenth Amendment, first, by effectively ordering the deportation of California residents without hearings or other due process of law and, second, by denial of free education to undocumented children, that Amendment's Equal Protection clause.

Proposition 187 prohibits public social services to those who cannot establish their status as a U.S. citizen, a lawful permanent resident, or an ``alien lawfully admitted for a temporary period of time.''*8 Only persons in those categories may receive health-care services from a publicly funded health care facility, ``other than emergency medical care as required by federal law . . . .''*9 Anyone else must be denied the requested services or other benefits, directed in writing to ``either obtain legal status or leave the United States'' and be reported to the authorities, including the Immigration and Naturalization Service (INS).

Proposition 187 also limits attendance at public schools to U.S. citizens and to aliens lawfully admitted to the United States for permanent residence or otherwise authorized to be here.*10 The new statute gives school districts until next Jan. 1 to verify the status of pupils and their parents; but whenever they reasonably suspect a violation they have only 45 days to so notify INS and other authorities and to advise parents that schooling will be cut off in 90 days.

The denial of education to children is particularly open to constitutional attack in view of the 1982 Supreme Court decision in Plyler v. Doe.*11 There the Court held that a Texas statute that effectively denied undocumented children a public-school education violated the Fourteenth Amendment's equal protection clause. (School authorities, however, were not called on to identify parents who lacked proper immigration status or to report that fact to INS, a requirement in Proposition 187 that allegedly causes undocumented parents, afraid of being turned in, to withdraw even their U.S. children from school.*12)

Conflict With Federal Laws

The 5-4 opinion in Plyler sounds two conflicting themes, variations of which appear in the Proposition 187 litigation. On the one hand, the undocumented status of aliens might itself be sufficient basis for denying governmental benefits that it provides to others. On the other, control of immigration is within the exclusive purview of the federal government. While ``the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal,'' the disability imposed on the students does not correspond with ``any identifiable congressional policy,'' and, more important, the classification of undocumented students ``does not operate harmoniously within the federal program.''*13

The compelling consideration for the Plyler Court was how the statute hurt innocent children and society. These considerations were conclusive: ``Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life . . . . In determining the rationality of [the statute], we may appropriately take into account its costs to the Nation and to the innocent children who are its victims.''*14

Does Plyler control the constitutionality of Proposition 187? From Judge Pfaelzer's oral decision, Plyler directly affects only those seeking to enter or remain in elementary or secondary schools; those in the university system will not be protected.*15 However, threads of Plyler are woven into a more general constitutional attack on Proposition 187, relating to the supremacy of federal legislation overthe subject of immigration. Congress unquestionably has authority to legislate on immigration and has exercised that power comprehensively in ``regulating authorized entry, length of stay, residence status, and deportation,'' and in the treatment of aliens otherwise.*16 In defining who gets benefits, Congress has stitched immigration classifications into the fabric of various public assistance programs.*17

Proposition 187 undercuts the federal legislation described. Its eligibility requirements bar many aliens for whom Congress has explicitly provided coverage. By federal law, aliens may participate in the Medicaid and Aid to Family with Dependent Children (AFDC) programs if they are either lawfully admitted to permanent residence or permanently residing in the U.S. under color of law (PRUCOL). Under Medicaid, PRUCOL includes conditional residents, parolees, Cuban/ Haitian entrants, temporary resident aliens and persons admitted as refugees or granted asylum.*18 Under AFDC, PRUCOL includes these categories plus others permitted by INS to remain in the U.S. for long or indefinite periods. But Proposition 187 denies benefits to all such applicants, as they are neither lawful residents nor ``admitted for a temporary period of time.''

Moreover, under Proposition 187, frontline, untrained state employees decide who ``has apparent illegal status'' or is here ``in violation of law'' and therefore ineligible for benefits.*19 Those who bear the bad news are deputized to direct the applicant to leave the country, effectively to issue what may easily be taken as a deportation order. Yet, the Immigration and Nationality Act provides that such an order may be issued only by an immigration judge after a hearing on a record, with the government bearing the burden of proof, and the alien having a right to counsel.*20 Moreover, PRUCOL aliens by definition have INS permission to stay in the United States; and many aliens, although deportable, may be granted discretionary relief that allows them to remain.*21 Here, too, the California statute conflicts with federal legislation.

Due Process

Plaintiffs also argue that Proposition 187's procedure violates the Fourteenth Amendment's Due Process clause by threatening to take away valuable rights or interests without a prior hearing. Public assistance, for example, is an interest that may not be cut off without a pre-termination hearing.*22 Due process also requires a hearing before a deportation order may be entered.*23 Proposition 187 therefore violates the Constitution when it tells state employees to terminate a woman's pre-natal care or turn a child out of school and then direct the parties to leave the United States -- without a hearing or other means of evaluating their rights.

Of course, the same equal protection, supremacy and due process provisions that control Proposition 187, face other states as they consider what to do about undocumented aliens. And a state law must also pass muster under its own constitution. For example, a provision of New York's constitution that mandates support of the needy, ``unequivocally prevents the Legislature from simply refusing to aid those whom it has classified as needy.''*24 Under California's own equal protection provision, education is treated as a matter of ``fundamental interest'' whose ``unique importance . . . in California's constitutional scheme requires careful scrutiny of state interference with basic educational rights.''*25 That is why some California plaintiffs have attacked Proposition 187 in their state court, urging the Plyler analysis, enhanced with a strict scrutiny test.*26

Congress on the other hand is far less constrained than the states in the classification of aliens, having a preeminent role in their regulation.*27 As the Supreme Court has said, ``Over no conceivable subject is the legislative power of Congress more complete.''*28

Concerning public assistance, federal restrictions begin with visa and entry eligibility. Aliens are inadmissible to the United States if they are likely at any time to become a public charge.*29 To meet the public charge issue, applicants are sometimes asked to supply affidavits of support by sponsors. Such affidavits have generally been treated as good faith expressions of intent rather than enforceable contracts.*30 On the other hand, for a period of three years after the alien's entry, the sponsor's income and assets are deemed to be the alien's for purposes of establishing eligibility under three federal programs, AFDC, food stamps and Supplemental Security Income (SSI), even though the alien may receive no help from the sponsor.

As another control, an alien is made deportable for becoming a public charge within five years of entry, except for causes arising after the entry.*31 As each re-entry renews vulnerability, the alien who travels abroad may be indefinitely at risk. Ordinarily, the government must prove both the liability and demand for payment, as well as the failure to pay; the burden is then on the alien to show that the cause of indigence arose after entry.

Tighter Provisions

In its report to Congress on Sept. 30, the influential U.S. Commission on Immigration Reform, chaired by former Congresswoman Barbara Jordan, recommended that the public charge provisions be tightened.*32 The commission would make the affidavits of support legally enforceable. Sponsors would have to think twice before signing such an affidavit, which is all to the good so long as consuls and the INS continue to accept, alternatively, evidence that applicants can support themselves with their own assets or income. If the affidavit is made enforceable, the ``deeming'' provisions should be dropped.

The commission would also allow deportation proceedings to be triggered simply if public assistance is requested and repaid; there would be no need to prove that the agency requested repayment. But to take away the green card without warning and an opportunity for reimbursement seems too Draconian a remedy.

As a general rule, lawful permanent residents (``green card'' holders) are entitled to participate in all public assistance programs, although doing so, as indicated, may expose them to deportability. For those who obtained their green cards under certain legalization programs, however, eligibility for benefits may not kick in for several years.*33

Apart from lawful residents, eligibility for assistance or other public benefit depends on the program and the alien's status, although all aliens, whatever their status, may receive emergency treatment under Medicaid. With numerous programs and almost as many alien statuses, including the variations of ``permanently residing under color of law,'' any eligibility chart is a crazy quilt. Worse, when benefits are granted to one class of aliens and denied to others, there is often no rationale for the distinction, as Professor Janet M. Calvo has shown in a penetrating critique of restrictions on public assistance.*34

The Jordan commission ``recommends against any broad categorical denial of public benefits to ``legal immigrants.''*35 Such immigrants come to the United States expecting to make it their home and are entitled to a safety net when unexpected illness or other such circumstances arise after entry.

A `Message'

The commission notes that ``illegal aliens'' are now only eligible for assistance on a limited basis. As a ``message'' to others, the commission would keep it that way, with states and localities allowed to impose the same restrictions (presumably harmonized, unlike Proposition 187's). That limited basis includes emergencies and ``similar compelling reasons to protect public health and safety (e.g., immunizations and school lunch and other child nutrition programs) or to conform to constitutional requirements.''*36

The limited category is one of three that the commission would establish in sorting out the miscellany of alien statuses now eligible for one or more benefit programs. Another would consist of persons entitled to the full range of needs-tested benefits, subject to the public charge and sponsorship provisions (notably permanent residents). The third comprises those authorized to work and eligible only for benefits that relate to employment, presumably unemployment, disability, and Workers Compensation benefits.

Acknowledging the financial impact of lax border enforcement on states and localities, the commission recommends that they receive impact aid, at least in the short term, until better enforcement measures take hold. In principle, it also favors additional funding to assist localities with the costs of Medicaid for the emergency care of ``illegal aliens'' and for educating undocumented alien children but would not introduce such a program until the costs can be established.

`Disproportionate Hit'

In her earlier study, Professor Calvo argues that while aliens, particularly undocumented aliens, pay their way in taxes to the federal government, such states as California, New York, Texas, Illinois and Florida take a disproportionate hit in the use of state and local services.*37 Washington should take fiscal responsibility for immigration policies that burden communities with homelessness and increased medical costs and impair their ability to meet other legitimate needs. This is a sensible proposal, echoed in the report of the Jordan Commission, and it is the best answer to Proposition 187.

Professor Calvo proposes two guidelines for granting benefits. The first is somewhat broader than the commission's corresponding test. She would allow assistance to the alien needy if restricting the benefits would either harm the community or ``would undermine society's sense of basic humanity by subjecting particularly vulnerable residents to extreme hardship.''*38 In short, says Professor Calvo, society should not only give emergency medical care and inoculation against contagious disease, but also help when rejection would be unconscionable. What about screening for such diseases, prenatal care and other preventive services, for which the undocumented are now ineligible? Is the community not harmed when children are born with avoidable handicaps?

Second, Professor Calvo would also allow benefits to PRUCOL aliens, interpreted to mean all those whom the government allows to stay by policy or by individual circumstance. (This should not of course serve those whom INS has simply not caught, whether through laxity or bad luck.)

Professor Calvo's two criteria are sound. If we allow aliens to remain in the United States, pay taxes and become part of our community, we have to deal with their misfortunes, for their sake and ours. One lesson of Plyler is that children may not be punished for evasion of immigration laws, and, if they are to be allowed to remain here, they should be educated (and otherwise cared for) in our own interest. Another lesson, is that aliens come to the United States primarily to work -- not for schools or medical care or other public benefits.

We should invest in better enforcement to reduce undocumented immigration, both at the border and by investigative follow-up, and we should monitor that system to improve its efficiency. We should hire more examiners and immigration judges, if necessary, to dispose of the asylum and deportation cases, which now remain on the docket largely because of an institutional failure to adjudicate. The message to be sent is that we will vigorously police our borders, and enforce deportation, not that we will act in a way unbecoming to a sensible and humane people.

Notes

(1) ``The New Colossus'' (1883), inscribed at the base of the Statue of Liberty.

(2) Richard Lacayo, ``Down on the Downtrodden,'' Time, Dec. 19, 1994, at 34. The quote, from Representative Clay Shaw (R-Fla.), who is set to chair the House Ways and Means subcommittee on human resources, ends: ``Now the question becomes, are these handouts a magnet that is bringing people to this country? To some degree, they are.'' This column largely addresses the legal limits on state regulation of public education, assistance and other benefits as a means of reducing immigration and the need for a rational federal policy in qualifying aliens here for various benefits. It does not argue whether immigration, legal or undocumented, is on the whole good for the U.S. economy. On that subject there is now a vast literature. It assumes, however, from studies made that aliens pay more in taxes, at least to the federal government, than they receive in benefits. A recent American Civil Liberties Union guide for advocates, citing numerous studies, argues: ``Virtually all these studies conclude that immigrants, both documented and undocumented, contribute greatly to the country's economy and are an asset rather than a burden to the economy. These studies note that immigrants stimulate local economies, create jobs, and pay far more in taxes than they receive in government benefits.'' ACLU Immigrants' Rights Project, Rights of Passage: Immigrants Civil Liberties & Public Policy 11 (July 1994). The ACLU references include studies that address the economy of California. Cf. George C. Borjas, Friends or Strangers: The Impact of Immigrants on the U.S. Economy 159-162 (1990) (arguing that economist Julian Simon's conclusion, that immigrants as a class pay their way in the tax system and are beneficial in increasing the tax base for irreducible expenditures, may overlook the larger costs of more recent immigration; still, any net cost is a relatively small part of the U.S. budget).

(3) See Plyler v. Doe, 457 U.S. 202, 225 (1982). Cf. DeCanas v. Bica, 424 U.S. 351 (1976) (federal power to regulate immigration, exercised or latent, does not preempt harmonious state legislation -- here, regulation on the hiring of aliens with no authorization to work in the U.S. -- without evidence of congressional intent to preempt). Other state efforts to address the alleged financial burden of federal immigration policies have involved suits by at least seven states, including Florida, Texas and California to recoup those costs, resulting in dismissal by a U.S. District Court in Miami, Florida, on Dec. 20, 1994, and indications of a similar result by the federal court in Texas. See Mereya Navarro, ``Florida's Plea for Immigration Relief Fails,'' New York Times, Dec. 21, 1994, at A20.

(4) Proposition 187 was approved by the electors of California on Nov. 8, 1994, as an initiative statute. See 1994 Cal. Legis. Serv., Prop. 187 (Westlaw).

(5) See Memorandum of Points and Authorities in Support of Application for Temporary Restraining Order, at 38-39, referring to Exh. 4, Gregorio T. v. Wilson, No. 94-7652 JMI (GHKx) (C.D. Cal.).

(6) As no transcript of that decision is apparently available, I have relied for a general description on news accounts, see, e.g., Noble, ``Initiative on Aliens Suffers Its Biggest Setback Yet,'' NYT, Dec. 15, 1994, at A18; Calif.'s Prop 87 Blocked, AP dispatch, Dec. 15, 1994, supplemented by a telephone conversation on Dec. 17, 1994, with Mark D. Rosenbaum, lead attorney on the memorandum referred to at note 5. From that conversation, I understand that the written order/opinion will join and cover the four principal cases filed in the district.

(7) U.S. Constitution, Article VI.

(8) Proposition 187, Sec.5, see supra note 4. The provisions that generate most of the benefits at issue are federal laws that, in any event, bar aliens who are not admitted as lawful residents or otherwise permanently residing here under color of law. See infra notes 18, 19 and accompanying text. Hence, Proposition 187's inclusion of one qualifying category -- those admitted temporarily -- seems cynical, although it may simply be inartful or reflect the failure to track the language of federal legislation.

(9) Proposition 187, Sec.6.

(10) Proposition 187, Sec.7. As to public postsecondary schools, the limitation is the same. Sec.8(a).

(11) 457 U.S. 202.

(12) On the withdrawal of students, see Memorandum, supra note 5, at 20, and references therein to the record.

(13) 457 U.S. at 225-26, citing De Canas v. Bica, 424 U.S. 351 (1976).

(14) 457 U.S. at 222, 223-24. Constrained by its earlier holding in San Antonio School District v. Rodriguez, 411 U.S. 1 (1973), that education is not a ``fundamental right,'' and given its opinion that undocumented status is not a ``constitutional irrelevancy,'' the Court applied an intermediate rather than strict scrutiny test. 457 U.S. at 223-24. Cf. position of California Supreme Court, infra note 25 and accompanying text.

(15) The decision in respect of college students may rest on the Plyler distinction between children and adult aliens in the U.S. in violation of law: ``Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct.'' 457 U.S. at 219. And withholding a college education as opposed to instruction in the three Rs is less of a harm to the individual and to the nation.

(16) Gonzales v. City of Peoria, 722 F2d 468, 474-75 (9th Cir. 1983). See also generally, Plyler v. Doe, 457 U.S. 202, 225 (1982); De Canas v. Bica, 424 U.S. 351, 359 (1976); Graham v. Richardson, 403 U.S. 365 (1971) (state statute unconstitutional on equal protection grounds for denying educational assistance in higher education to lawful residents though otherwise available to citizens).

(17) See generally Janet M. Calvo, ``Alien Status Restrictions on Eligibility for Federally Funded Assistance Programs,'' 16 N.Y.U. Rev. of L. & Social Change, 395 (1987-88); declaration by Professor Calvo, City University of New York, School of Law, dated Nov. 7, 1994, on file with the author.

(18) Calvo declaration, id. at 4, 5.

(19) Proposition 187, Sec.Sec.5-7.

(20) INA Sec.Sec.242(b) (order to be issued by immigration judge), 292 (right to counsel), 8 USC Sec.Sec.1252(b), 1362. See also Woodby v. INS, 385 U.S. 279 (1966) (government has burden of proving

deportability by ``clear, unequivocal, and convincing evidence'').

(21) See, e.g., INA Sec.Sec.208(asylum), 243(h)(withholding of deportation), 244(suspension of deportation), 245(adjustment of status), 8 USC Sec.Sec.1158, 1253(h), 1254, 1255.

(22) Goldberg v. Kelly, 397 U.S. 254 (1970) (deprivation of public assistance benefits without prior hearing, a deprivation of property without due process of law under Fifth Amendment).

(23) Wong Yang Sung v. McGrath, 339 U.S. 33 (1950), modified, 339 U.S. 908 (due process provision of Fifth Amendment requires hearing on a record before deportation can be ordered).

(24) See New York Constitution, Article XVII; Tucker v. Toia, 43 NY2d 1, 8 (1977).

(25) Butt v. State of California, 4 Cal. 4th 668, 683, 15 CalRep2d 480 (1982) (citations omitted). See California Constitution, Article I, Sec.7(a). See also Serrano v. Priest, 18 Cal3d 728, 767-68 (1976) (``In applying our state constitutional provisions guaranteeing equal protection of the laws we shall continue to apply strict and searching judicial inquiry to legislative classifications which, because of their impact on those individual rights which lie at the core of our free and representative form of government, are properly considered `fundamental.''') The cases cited here and the point advanced are taken from the ACLU brief in support of plaintiffs' application for a TRO and OSC, in Pedro A. v. Dawson, Docket No. 965089 (San Francisco Superior Ct.) pending before Judge Stuart R. Pollack. They are among the arguments made in several state-court challenges to Proposition 187 filed in the San Francisco area.

(26) See, e.g., Pedro v. Dawson and brief, cited supra note 25.

(27) See Toll v. Moreno, 458 U.S. 1, 10 (1982).

(28) Fiallo v. Bell, 430 U.S. 787, 792 (1977). See Mathews v. Diaz, 426 U.S. 67 (1976) (unanimously sustaining limitation of Medicare benefits for five years after lawful admission to U.S. as resident as distinction is valid expression of paramount federal authority to regulate immigration and not irrational). Of course even in legislating with respect to aliens in the U.S., Congress must observe the requirements of procedural due process. Wong Yang Sung v. McGrath, supra note 23.

(29) INA Sec.212(a)(4), 8 USC Sec.1182(a)(4). Such aliens have been excludable from the United States since the first general immigration statute, the Act of Aug. 3, 1882, 22 Stat. 214.

(30) See 9 Department of State Foreign Affairs Manual Sec.40.40 n.6.4.

(31) INA Sec.241(a)(5), 8 USC Sec.1251(a)(5). See 3 Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure Sec.71.07[3] (rev. 1994).

(32) U.S. Immigration Policy: Restoring Credibility: A Report to Congress (Executive Summary) 24 (Sept. 1994).

(33) See generally Calvo article, supra note 17; Charles Wheeler, ``Alien Eligibility for Public Benefits: Part I,'' No. 88-11 Immigration Briefings (Nov. 1988).

(34) See generally Calvo article, supra note 17.

(35) Supra note 32, at 23. The commission however fails to note the pernicious effects of the ``reentry doctrine,'' and to recommend that it be scrapped at least in connection with the public charge issue. See main text immediately following the reference to note 31. Because of the definition of ``entry'' in immigration law, an alien resident in the United States for decades can be deportable for becoming a public charge within five years of a three-month sojourn abroad. See discussion, e.g., David A. Martin, Major Issues in Immigration Law 50 (1987).

(36) Id. at 22.

(37) Supra note 17, at 424.

(38) Id. at 431.