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ATLANTIC HIGHLANDS HERALD |
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BUILDING THE BUSINESS Arizona voters approved Proposition 200 in November ’04 by 56% to 44%. It requires state and local government employees to verify the immigration status of all persons who seek public benefits that are meant for citizens only, and to inform federal authorities of any applicant who appears to be in violation of U. S. immigration law. Employees failing to comply can face criminal charges. All persons registering to vote must show proof of citizenship. Last week, a three-judge panel from the U. S. Ninth Circuit Court of Appeals dismissed a lawsuit challenging the constitutionality of Prop. 200. The suit was brought by the Mexican-American Legal Defense and Educational Fund (MALDEF) and Friendly House, a Phoenix-based nonprofit social service agency. The two organizations had sought to block implementation of the new law on grounds that it would “jeopardize the health and well-being of families and children who depend on public benefits for their basic necessities”. The judges ruled: “The appeal is dismissed for want of jurisdiction. The district court record reveals that there was no case or controversy between plaintiffs and the state of Arizona when pleadings were before the district court. Plaintiffs have not met their burden of demonstrating an injury-in-fact… [Plaintiffs] did not articulate a concrete plan to violate Proposition 200, [or] evidence that prosecuting authorities have communicated a specific warning or threat to initiate proceedings, or a history of past persecution, which clearly cannot be shown here.” In layman’s language, the court tossed the suit on procedural grounds. No complaints had been registered about the law (since it hadn’t been implemented yet), so there could be no injury. There was also no indication that the state planned to initiate proceedings against anyone or that MALDEF or Friendly House planned to violate the law. Thus, (said the court) there was no case. Reports I have seen did not indicate whether people in Arizona are celebrating this decision. But if they are, they shouldn’t be. The plaintiffs will certainly be back with a stronger case – thanks to the roadmap provided by the kindly judges of the Ninth Circuit. Courts are said to be vital to our way of life because they are staffed by wise men who make wise rulings and say wise things that help us live more orderly lives. We couldn’t get along without them, goes the conventional wisdom. In the case of Proposition 200, what counsel did the three wise men from the Ninth Circuit give? They mapped out how illegals and their representatives can fight (and possibly beat) Proposition 200: Psst! Sign up for welfare benefits, they advised. Try to register to vote. Violate the law. (Or make a plan to violate it.) Get arrested. Then come back, and we’ll see what’s what. Reporters say, “Everything-is-fine is not a story!” Why not? Because news is a business. Blood sells newspapers or adds viewers; smooth sailing doesn’t. This is why you rarely read about the millions of people who work hard, raise their children soundly, stay married, and generally succeed in life. They are not interesting. Their stories don’t build the news business. Just so, people in the court-business say, “People-are-governing-themselves-and-order-prevails is not a helpful situation.” The operative question for courts is the one producers ask over drinks in Hollywood: “where’s the conflict”. Courts thrive on grievance, violence, damage, injury, victimization and loss. Without these, what would that army of clerks, bailiffs, lawyers, judges, recorders, police, investigators and court-followers do for a living? (Sell shoes? There aren’t that many shoes for sale.) Abstract justice is one thing, keeping the business going is another. This, I believe, is why courts keep controversial issues in play instead of resolving them, as ordinary people would do. The future of the business is always a top concern. Rather than ruling directly on the substance of the Prop. 200 suit – a bizarre claim that illegals who live on public assistance might be disadvantaged by being cut off (no kidding?) – the three judges sent MALDEF and Friendly House back to the drawing board with some “friend-of-the-plaintiff” coaching. Perhaps sensing a landmark case just over the horizon, the Ninth Circuit made sure the plaintiffs would have a stronger suit when they returned. What would “finality” have looked like in this case? Obviously, the court could have gone either of two ways: (a) Strike Prop. 200 down; or (b) reject the suit on grounds that illegal residents possess no inherent “rights” to federal benefits. There is precedent for choosing (a). In Plyler v. Doe (1982) the Supreme Court struck down a Texas law that authorized school districts to deny enrollment to illegal aliens. In its ruling the Court said it was “…difficult to understand precisely what [Texas] hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries”. The Court applied the Fourteenth Amendment’s demand for “equal protection under the law” to non-citizens – making no distinction between illegal and legal non-citizens. The case is often cited in attempts to strike down ballot initiatives like Prop. 200. This ruling is lived out in the DC metropolitan area, where I live. Maryland and Virginia counties with highly regarded schools look for students in their systems who are not county residents. The families of these students are billed for out-of-county tuition – typically, thousands of dollars a year. If the families won’t pay, the students are expelled. But there is an exception. If officials realize a student is “undocumented” – i.e., illegal – tuition is waived and great care is taken not to disclose the family’s immigration status. So it’s actually more advantageous to be an illegal than to be a citizen from a neighboring county. (Is this a great country, or what?) Had the Ninth District’s judges ruled against the Prop. 200 suit on grounds that the illegality of illegals negates any right to federal benefits, they would have established an important precedent harmonious with the public weal. But that would have cut off a scintillating line of future cases. Not good for the business. Ergo, the issue is still out there, unresolved. Call me crazy, but it certainly looks as if prospective litigation is becoming a major consideration in how court decisions are made. In June 2004 the Supreme Court dismissed the Pledge to the Flag suit (Newdow v. Elk Grove Unified School District) because the plaintiff, Michael Newdow, was not the custodial parent of the student. The Court did not rule on the merits of his suit. The issue is bound to return. Why didn’t the court rule substantively on the Pledge? And why didn’t the Ninth Circuit settle the benefits-for-illegals matter? Technicalities. But I think it’s all about the business. Think of your mechanic not fixing your car properly so he can get another repair job out of you. It’s like that. In the daily newspaper, half of the articles seem to be about court rulings. Courts are in charge. They are governing the country – taking over schools, even “directing” executive-branch officials and legislatures. We no longer rule ourselves. Why do we need legislatures or governors? Why – but to enact huge spending bills – do we need Congress? Let’s replace representatives and senators with cardboard cutouts in their respective chambers. (This would save us big bucks.) All seriousness aside – in an earlier article I said courts will make the country unrecognizable if we let them run wild, as they are doing now. The thing is clearly out of control. It will have to be stopped. The operative questions are: when? how? and at what cost? A lot of good men died to secure liberty for us. It would be too bad if we just rolled over and let it be taken from us now.
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