Immigration, Propositions and Dodging the Constitution

		        The Recorder
             (a journal for the legal profession)

                      November 21, 1994

	             Lawrence J. Siskind
                    Daniel W. Sutherland

Proposition 187, the "Save Our State" initiative, has serious flaws. But now that the polls have closed and the lawsuits have opened, the question is no longer whether 187 is wise but whether it is constitutional.

As an aging Justice Oliver Wendell Holmes once remarked to a 60-year-old colleague, "Young man, about 75 years ago I learned that I was not God. And so, when people want to do something I can't find anything in the Constitution expressly forbidding them to do, I say, whether I like it or not, `Goddamit, let them do it.'" [H. Abraham, Freedom and the Court at 27 (1982)]. Under Justice Holmes' colorful restatement of judicial restraint, most but not all of Prop 187 should pass constitutional muster.

During the campaign, opponents cited Plyer v. Doe, 457 U.S. 202 (1982), to support their view that Prop 187 was unconstitutional. In that 5-4 decision, the Supreme Court held that is is a violation of the Fourteenth Amendment for a state to deny public education services to illegal immigrant children.

Justice William Brennan, writing for the majority, created a novel standard of review. Established precedent, San Antonio Independent School District v. Rodriguez, 411 US 1 (1973), prevented him from finding that illegal immigrant children are a "suspect class" or that education is a "fundamental right." Therefore he could not evaluate the Texas law with "strict scrutiny" requiring a "compelling state interest" to justify its existence. Deprived of the strict-scrutiny test, Justice Brennan created a new one.

He wrote of the "supreme importance" of education, of its "pivotal role," and of the "inescapable toll of [its] deprivation on the social, economic, intellectual and psychological well-being of the individual..." Then he constructed a hybrid standard of "heightened" scrutiny and "special constitutional sensitivity." As Chief Justice Warren Burger wrote in dissent: "[B]y patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the Court spins out a theory custom-tailored to the facts of these cases."

This novel standard of review got the majority where they wanted to go. For that matter, it appears that the dissent wanted to go there too, but felt constrained by the doctrine of separation of powers. Chief Justice Berger began his dissent: "Were it our business to set the Nation's social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children -- including illegal aliens -- of an elementary education...However, the Constitution does not constitute us as `Platonic Guardians' nor does it vest in the Court the authority to strike down laws because they do not meet our standards for desirable social policy, `wisdom' or `common sense.'"

While he disagreed personally with the law, Berger had no trouble finding it constitutional under the "rational relationship to a legitimate state purpose" test: :"Without laboring what will undoubtedly seem obvious to many, it is simply not `irrational' for a state to conclude that it does not have the same responsibility to provide benefits for persons whose very presence in the state and this country is illegal as it does to provide for persons lawfully present."

How will Prop 187 fare when tested against Plyer? First. because the court's analysis was specific to education, it will probably pose no barrier to Prop 187's prohibition of non-emergency medical care and social services.

Second, as to the issue of education itself, changing times may have undermined the precedent. Brennan challenged the state's argument that it had a legitimate interest in blocking the influx of illegal immigration, by agreeing with the lower court that denying children an education was a "ludicrously ineffective" way to serve that purpose in view of the fact that it remained legal to employ their parents.

But in 1986, Congress passed the Immigration Reform and Control Act, making it illegal to employ their parents. The problem of illegal immigration has persisted. So even under Brennan's analysis, a state would have a better shot today of justifying the denial of educational benefits to illegal immigrant children.

Third, and perhaps most importantly, Plyer may not upend Prop 187 because the composition of the Supreme Court has changed dramatically since the case was decided in 1982. If the precedent and the Proposition collide, the case may be the first casualty.

One activist member of the 5-4 majority, Justice Thurgood Marshall, has been replaced by Justice Clarence Thomas. While it is true that one conservative member of the dissent, Justice Byron White, has been replaced by a liberal, Justice Ruth Bader Ginsburg, that change may not help save Plyer. Justice Ginsburg has pronounced her preference for the legislative process over the judicial in the abortion area. In the immigration area, as in Roe v. Wade, she may be reluctant to "remove the ball from the legislators' court." The fate of Plyer v. Doe will rest in her hands, along with the hands of three other justices absent in 1982 -- Anthony Kennedy, David Souter and Stephen Breyer.

Even if Plyer v. Doe is overruled, some provisions of Prop 187 probably will not withstand constitutional scrutiny. Prop 187 requires employees of social service agencies, health care facilities, elementary and secondary schools, and post-secondary educational institutions to report to the Immigration and Naturalization Service anyone who they "determine or reasonably suspect" to be an illegal immigrant. They must also file a report on each person with the attorney general of California, who in turn must maintain these records and produce them when another government agency requests information on the suspect.

The reporting requirement could lead to an explosion of cases similar to Jacob Orhorhaghe v. Immigration and Naturalization Service, 94 C.D.O.S 8004 (9th Cir., Oct. 21, 1994). Mr. Orhorhaghe's name did not appear in one of INS's computers. Along with an officer of the Oakland Police Department, he entered Mr. Orhorhaghe's apartment and searched his briefcase. They discovered his Nigerian passport -- with proof that his tourist visa had expired in 1982.

The Ninth Circuit U.S. Court of Appeals ruled that the INS search constituted an "egregious violation" of the Fourth Amendment. The order of deportation was overturned because, "Orhorhaghe's `Nigerian-sounding' name is clearly insufficient to justify a seizure...[T]he issue in this case is directly analogous to that considered in the long line of cases...which have held that `Hispanic-looking appearance and presence in an area where illegal aliens frequently travel are not enough' to justify a seizure by immigration officials." The Ninth Circuit decision is broad: "[T]he principle...applies to any seizure that is justified on the basis of superficial and subjective indicia of national origin."

Prop 187's reporting requirement could encourage a flood of "superficial and subjective" reports that a person is an illegal immigrant. Thousands of people, untrained in criminal law and afraid of running afoul of Prop 187, will be scrutinizing California's ethnic minorities. More than likely, reports on people named Orhorhaghe or Nguyen or Perez will pour in, while Smith and Jones reports will be less than a trickle. The Ninth Circuit observed that "of all the cases involving people who were stopped or searched because of their `foreign-looking' appearance or `foreign-sounding' names, we are not aware of any in which the targeted individuals were Caucasian."

Of even greater concern are the files amassed by the state attorney general. Prop 187 requires the attorney general to maintain files on each person and share the files with any government agency that requests information, without regard for the purpose of the request. There are no controls placed on the files; contrast that with arrest records, which may be expunged after a period of time. Since Prop 187 does not allow any revisions "except to further its purposes" of strictly controlling illegal immigrants, it is unlikely that the attorney general even has authority to impose reasonable restrictions on these reports of suspected illegal immigrants.

The Fourth Amendment right to be free from unreasonable searches and seizures, unlike educational services and other social benefits, is expressly provided for by the Constitution. Thus, even before judicial-restraint-minded judges, the reporting requirements of Prop 187 will face tough sledding.

Whatever happens to the specific provisions of Prop 187, the underlying problem of illegal immigration should be addressed by the people and their legislators, not by the courts. This enormously complex and troublesome issue forces us as citizens to exercise our deepest resources of judgement, wisdom and compassion. Whatever one thinks of Prop 187, its passage represents one such exercise. Our democratic processes allow for others: Propositions, once passed, may yet be repealed or superceded by different laws.

Vigorous and robust debate over this issue should continue. Removing the question from the political machinery, and turning to the courts to tell us what to do about illegal immigration, is punting our job as citizens. We may like the result, but we pay a cost in our diminished sense of civic and moral responsibility.

Lawrence J. Siskind is a partner with Cooper, White and Cooper; Daniel W. Sutherland practices in Washington, D.C. From 1987 to 1989, they were colleagues in the Justice Department's Office of Special Counsel for Immigration Related Unfair Employment Practices.