Mike Kueber's Blog

November 30, 2014

Comprehensive immigration reform, according to Kueber

Ruben Navarrette, Jr. is my favorite columnist on the subject of immigration reform. Although he tends to be liberal, he is the closest thing to an “honest broker” that I have encountered. He won my support as fair minded a while back when he declared that illegal immigrants have no right to demand anything from America; rather, America needs to do what is best for itself, including being generous and humane.

Navarrette’s column this week exemplified his maverick streak. Instead of explaining why President Obama’s executive order was a step in the right direction, he pointed out something the mainstream media has studiously avoided.  He suggested that Obama’s order perversely confirmed something that conservatives have charged for many years; namely, that the citizenship granted to babies born to illegal immigrants in America would be used as an anchor to keep all of them in America.

As I reflected on Navarrette’s column and anchor babies while on my bike ride yesterday, I had an epiphany about solving the problem with illegal immigration. The solution to comprehensive immigration reform has been intractable because liberals want to focus on providing some form of amnesty to the 11 million immigrants already here illegally while conservatives want to ignore those people until the danger of additional illegal immigration is eliminated (via an impregnable fence). Navarrette’s column suggested to me a common ground. Instead of building an impregnable fence before granting amnesty, the government can provide the necessary assurances to conservatives by eliminating the magnets that continue to attract illegal immigrants. What are the magnets:

  1. Birthright citizenship. American citizenship is one of the most valuable things that parents can provide their baby, so it is natural that parents will do whatever is necessary to make that happen. That is a huge magnet. Although the constitution does not clearly provide for birthright citizenship, the courts have so held, and therefore to correct this unintended drafting consequence, Congress will need to pass appropriate legislation or amend the constitution.
  2. Public schools. Another huge magnet for illegal immigration is the public schooling that is provided to children who are here illegally. Once again, this magnet is based on a tenuous ruling by the courts (Plyler v. Doe)  and the ruling needs to be reversed, either through statute or constitutional amendment.
  3. Sanctuary cities. The federal government is quick to suppress state and local jurisdictions that want to help the feds enforce laws against illegal immigration. This action is usually based on the argument that federal law pre-empts any other jurisdiction from interfering. If the feds can take action to prevent local government from helping enforce the immigration laws, then it should be easy to take action to prevent local government from obstructing enforcement of immigration laws through various sanctuary-city policies.
  4. Jobs. I’m not sure why so many employers are able to hire so many illegal immigrants with impunity. These laws needs more teeth.

With the elimination of these magnets, I think conservatives could be persuaded to expand President Obama’s executive order to apply to all law-abiding illegal immigrants who have been in the country more than five years. This would not provide special status to parents of anchor babies and would not mandate an impregnable fence, but it would recognize that America feels some responsibility for allowing these people to take root in America.

I think we could all live with this result.



June 25, 2010

Bad law – stuck on stupid

“Bad facts make bad law” is an old adage taught in law school.  It means that a court’s opinion is often dictated, not by legal reasoning, but rather by the ultimate result that the court wants.  In other words, the court first decides which party should win and then writes an opinion that leads to that result.  Bush v. Gore is often mentioned as an example of this.  

Bad law also results when a judicial decision is based essentially on the court’s preferred public policy, not on legal principles.  This is sometimes called “legislating from the bench,” and a good example is the landmark affirmative action case, Grutter v. Bollinger, 539 U.S. 306 (2003).  In Grutter, Justice O’Connor approved reverse discrimination by a university, but warned:

  • “Race-conscious admissions policies must be limited in time….  The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Although the Supreme Court is bound by the concept of precedent, the Grutter opinion supports the proposition that earlier decisions should be revisited when the historical context changes or underlying assumptions are shown to be incorrect.  Nearly 30 years ago – in Plyler v. Doe, 457 U.S. 202 (1982) – the United States Supreme Court declared that Texas must provide a free public education to children who were illegal immigrants.  I suggest that, based on historical developments, the well-intended Plyler decision should be revisited and reversed because it improperly restricts the ability of states to discourage illegal immigration.   

Plyler struck down a Texas statute that attempted to prevent children who were illegal immigrants from attending public schools.  The Court found that where states limit the rights afforded to people (specifically children) based on their status as aliens, this limitation must be examined under an “intermediate scrutiny” standard to determine if it complies with the Equal Protection clause in the 14th Amendment.  A law satisfies “intermediate scrutiny” if it furthers a substantial goal of the State.  (“Strict scrutiny” is applied to laws that involve “suspect classes” or a “fundamental right” and requires that the law be precisely tailored to serve a compelling government interest.  All other laws require only that the classification at issue bears some fair relationship to a legitimate public purpose.)

The Supreme Court in Plyler determined that a law that tended to deny the education of illegal immigrants deserved intermediate scrutiny because of the Court was concerned about the creation of a permanent underclass:

  • “Sheer incapability or 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, has resulted in the creation of a substantial ‘shadow population’ of illegal migrants – numbering in the millions – within our borders.  This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents.  The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.”

This language from the Court clearly suggests that its motivation is to ameliorate the consequences of a dysfunctional federal government and its ineffectual immigration policy. 

The Court in Plyler went on to explain why the Texas law fails to further a substantial goal of the state:

  • “First, appellants appear to suggest that the State may seek to protect itself from an influx of illegal immigrants. While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population, 21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem. There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy. 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.  The dominant incentive for illegal entry into the State of Texas is the availability of employment; few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education. Thus, even making the doubtful assumption that the net impact of illegal aliens on the economy of the State is negative, we think it clear that ‘charging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration,’ at least when compared with the alternative of   prohibiting the employment of illegal aliens.”
  • “Second, while it is apparent that a State may ‘not . . . reduce expenditures for education by barring [some arbitrarily chosen class of] children from its schools,’ appellants suggest that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State’s ability to provide high-quality public education. But the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State.  As the District Court in No. 80-1934 noted, the State failed to offer any ‘credible supporting evidence that a proportionately small diminution of the funds spent on each child [which might result from devoting some state funds to the education of the excluded group] will have a grave impact on the quality of education.’  And, after reviewing the State’s school financing mechanism, the District Court in No. 80-1538 concluded that barring undocumented children from local schools would not necessarily improve the quality of education provided in those schools.  Of course, even if improvement in the quality of education were a likely result of barring some number of children from the schools of the State, the State must support its selection of this group as the appropriate target for exclusion.  In terms of educational cost and need, however, undocumented children are ‘basically indistinguishable’ from legally resident alien children.”

Both dot points above contain examples of a court substituting its judgment for the judgment of legislators.  The most jarring were the assertions that “few if any illegal immigrants come to this country… to avail themselves of free education” and that “charging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration, at least when compared with the alternative of prohibiting employment of illegal aliens.” 

With the benefit of hindsight, these judicial assertions seem ludicrous and laughingly simplistic.  Jobs are not the only magnet for illegal immigrants.  America also offers free education and medical care, reduced crime, and freedom.  It takes a lot of chutzpah for the Supreme Court to criticize legislators for ineffectively controlling immigration, while brazenly shooting-down a good-faith effort by Texas legislators to address the problem.

When the government response to Hurricane Katrina was floundering, a John Wayne-like character appeared on the scene and took charge.  Among Lt. General Russel Honore’s most famous comments was, “We aren’t stuck on stupid.”  I believe that our evolving Supreme Court knows more than it did in 1982, and Texas should give it another chance.  Let’s pass a law that addresses education and employment of illegal immigrants, and then give the Supreme Court a chance to show that it isn’t stuck on stupid.