Crazy in California

California’s voters have given us an occasion for melancholy reflection about the moral underpinnings of immigration policy, and about the condition of democracy in America. By a margin of 59 percent to 41 percent, Californians voted Nov. 8 to enlarge the underclass by kicking out of school hundreds of thousands of children of illegal immigrants; to increase crime by condemning them to roam the streets; to spread infectious disease by denying them vaccinations and other basic health care; and to create a police state by enlisting teachers, doctors, nurses, and even the children themselves as Soviet-style informants against their parents.

All this, also known as Proposition 187, is brought to you by some of the same "conservatives" who are so eager to stem the expansion of our home-grown underclass as to tout the "let ‘ em starve" variant of welfare reform, and so eager to liberate The People from big-government meddling as to seek tax cuts that would bankrupt the nation.

Of course Proposition 187 supporters like California Gov. Pete Wilson say that the vote was about saving the taxpayers the estimated $1.4 billion a year that it costs to educate more than 300,000 children of illegal immigrants. But any short-term savings will be dwarfed by the long-term costs.

Supporters also suggest that 187 will discourage illegals from coming to sponge off U.S. taxpayers. The columnist George Will, for example, paints the initiative as a righteous refusal of "welfare state" benefits to "people seeking entitlements from a state in which their presence was illegal." This effort to tar public education as some kind of exotic welfare-state entitlement combines demagogic pap with mindless scapegoating of innocent children.

Contrary to the smarmy implication of 187-boosters like Will, illegal immigrants are already ineligible for welfare, food stamps, and most other state and federal benefit programs under current law, as they should be. Proposition 187’s welfare ban is a pure redundancy.

What the initiative would add (if upheld by the courts) are cutoffs of schooling and non-emergency health care. It would also require education and health officials to report to immigration authorities any person "reasonably suspect[ed]" of illegal immigration. Aside from its ugly police-state overtones, this Stalinist-snitch provision would drive even born-in-the-U.S.A. citizens out of the public schools lest they be unwillingly enlisted as informants against undocumented parents.

Nor would these heavy human and other costs of Proposition 187 be offset by any substantial benefits, other than the short-term fiscal savings involved in slamming schoolhouse doors in the faces of children who will thereby become long-term burdens on society. Few illegal immigrants will be deterred from coming, because most of them seek work, not educational opportunities for their children.

It’s hard to come away from episodes like the triumph of Proposition 187 with much optimism about the electorate’s basic decency or common sense. But it’s the only electorate we have, so a search for mitigating explanations is appropriate.

One key to understanding this benighted vote may be that a certain moral confusion about how best to respond to illegal immigration is only natural, because most of us have uncomfortably internalized a national immigration policy that, perhaps necessarily, involves turning our backs on many suffering people and using arbitrary criteria to choose who gets in.

Immigration policy seeks to reconcile two irreconcilable impulses-our humanitarian aspirations and our fears of engulfment by the miseries of the Third World. The humanitarian approach would be to open the borders and invite all comers to share in the opportunities that drew our ancestors. But on a globe teeming with billions of suffering poor, such a policy could impose crushing burdens on our society, ultimately dragging our standard of living down toward that of places like Mexico City. Or so many of us fear. And in our fear we have long since broken the Statue of Liberty’s promise to take in the world’s poor, tired, hungry, huddled masses, without entirely abandoning the underlying aspiration.

This tension has given us immigration laws studded with a congeries of arbitrary distinctions that confound our moral and humanitarian intuitions: Refugees from political persecution are welcome (at least in theory), even if the dangers they flee pale in comparison with the starvation that stalks some others who, as mere refugees from economic hardship, are ineligible for asylum. But to the contrary, while Cubans of almost any description were admitted (until August), Haitian boat people were summarily returned to their persecutors without asylum hearings (until September, when the president sent in the Marines). And so on.

But notwithstanding the inevitability of a certain self-interested cruelty and arbitrariness, immigration policy should at least avoid involving this nation as an active accomplice in persecution, and should avoid gratuitous cruelty that does not serve our enlightened self-interest. The deal President Bill Clinton made with Fidel Castro in August to collaborate in preventing refugees from escaping Castro’s tyranny fails the first of these tests (as did Clinton’s previous policy on Haitian boat people).Proposition 187 fails the second.

The initiative’s barbarity lies not just in its cruelty-for all immigration restrictions are cruel- but also in the certainty that it will make things worse, not better, for the rest of us, as well as for illegal immigrants.

As all nine members of the Supreme Court agreed in 1982, "It is senseless for an enlightened society to deprive any children-including illegal aliens-of an elementary education… [and] to tolerate creation of a segment of society made up of illiterate persons."

Those were the words of then Chief Justice Warren Burger, in Plyler v. Doe, the 5-4 decision striking down a Texas statute that denied free public education to illegal immigrant children. While Burger’s was the dissenting opinion (he believed the Constitution provided no judicial remedy for such senselessness), he was in tune with the majority on the stupidity of the policy embodied by the statute. As Justice William Brennan Jr. wrote for the Court, that policy (like Proposition 187) would impose "a lifetime hardship on a discrete class of children not accountable for their disabling status," and thereby create a "permanent caste" of illiterates unable to "contribute in even the smallest way to the progress of our Nation."

The intelligent way to translate our fear of inundation by illegals into immigration policy is to spend what it takes to control the borders and to enforce the deportation laws against those who get across anyway. "The law should be enforced with dignity and often with regret," in the words of Grover Rees, a conservative Republican who was general counsel of the Immigration and Naturalization Service from 1991 to 1993, "not by letting people wander across the border and making their lives miserable once they get here."

Another key to understanding the California vote is that many voters said yes not because they really want to do what Proposition 187 says, but because they were beguiled into seeing it as a protest vote against the federal government’s failure either to control the borders or to reimburse border states like California for the costs of providing public services like education to illegal immigrants.

Indeed, exit polls show that many Proposition 187 supporters saw it largely as a symbolic gesture, because they expected its more draconian provisions to be struck down by the courts. (This is the sort of thing constitutional scholar James Bradley Thayer must have had in mind when he wrote in 1901 that a cost of "common and easy resort" to judicial review is a tendency "to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.")

But while Proposition 187 has indeed been tied up by a gaggle of temporary restraining orders, for now, Californians may eventually have to lie in the bed they have made for themselves, because the widespread predictions of judicial invalidation may well prove mistaken. Four of the five justices who voted to strike down the Texas statute in Plyler are gone, and today’s more conservative Court might well overrule it.

The justices would be wiser, however, to adhere to the Plyler precedent If ever there was an occasion for the judiciary to check the excesses of transitory popular hysteria, this is it.