Wednesday, July 15, 2009

More distortions from the fringe of the immigration debate

Obviously, the solution to California's problems is another ill-conceived ballot initiative.

This proposed ballot initiative is a reincarnation of sorts of Prop 187, a 1994 initiative that sought to deny benefits to illegal immigrants. Prop 187 passed by a wide margin, but was ruled unconstitutional. The new initiative seeks to pass constitutional muster in a rather back-handed way: one of the major tenets of the initiative is to create two kinds of birth certificates in the state of California-- one for children born to citizens and legal residents, and one for children born to illegal aliens. Under this plan, the parents would have to pay a fee, be fingerprinted, and submit paperwork and photo ID (all of which would be forwarded to Homeland Security). The proponents of this nascent proposition understand that citizenship is granted by the federal government and not by states, so instead, they plan to use the threat of Homeland Security to scare illegal immigrants away from getting their children their rightful U.S. birth certificates.

This is tricky because the infants are, well, infants. They need an agent to act on their behalf to obtain their birth certificates-- their parents. Think about it-- if birth certificates were received upon reaching the age of majority, this would be clearly unconstitutional. It is ludicrous to think of making an eighteen-year-old citizen of the United States give the government information about her or his parents' citizenship status, and then be awarded a "second-class" birth certificate based on that information. Because infants can't obviously request their own, the state, under this law, would hold their birth certificate effectively hostage. And clearly, the idea that some citizens have a certain type of birth certificate and others have yet another is extremely suspect; I really don't see how that would be anything less than a substantial violation of equal protection.

This has a certain resonance with Plyler vs. Doe, the 1982 Supreme Court case that struck down a Texas law that sought to deny public education to illegal immigrant children. The majority argued that the children had little power over their legal status and that the state did not have a substantial enough interest in denying them an education. Note that this law, struck down as unconstitutional, dealt with children who were in the U.S. illegally-- the ballot initiative now proposed in California is aimed at U.S. citizens whose parents are here illegally.

The High Court has dealt with a number of cases dealing with citizen children of illegal immigrants. In John D. Guendelsberger's journal article "Access to Citizenship for Children Born within the State to Foreign Parents", published in 1992 in The American Journal for Comparative Law, the author lists a number of cases in which the Supreme Court has "explicitly recognized the citizenship of children born to undocumented aliens". The list includes Doe v. Miller, Banks v. INS, Enciso-Cardozo v. INS, Acosta v. Gaffney, Perdido v. INS, Mendez v. Major, Lee v. INS, Cervantes v. INS, and Gonzalez-Cuevas v. INS.

This is a terrible, terrible initiative, which means it probably has a decent chance of passing in California. I'd like to point out a few issues I have with the website of the supporting organization, The California Taxpayer Protection Act.

1. There is a quote from a Sacramento Bee article by David Whitney that is rather inane in context. The website cites one of the article's early lines: "Although Congress has never passed a law saying so, no president has ever ordered it, and no court has ever ruled on the issue, each of these babies automatically becomes a U.S. citizen when it takes its first breath." This is something of a red herring; the 14th Amendment is rather clear in its statement that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Of course no presidential executive order or act of Congress has mandated birthright citizenship-- it's rather explicit in the Constitution. An act of Congress isn't needed to affirm one's right to a jury of one's peers, either. This is just disingenuous.

2. Numbers, numbers. The website also states that 32% of illegal immigrants collect welfare. I'm not sure what time frame this is, or where the figures came from (since there are no footnotes explaining sources), but a quick search yielded a figure close to that-- 34%-- but that was from the 1990's, and published by the Heritage Foundation. A more recent number (from 2001, published in a Center for Immigration Studies report), has a considerably lower figure of 23%. Moreover, most of the money spent on illegal immigrants is in the form of Medicaid, not in direct cash payouts.

3. Ted Hilton, Constitutional Scholar. The website claims that Ted Hilton, one of the authors and supporters of this alarming piece of proposed legislation is "a scholar of Constitutional Law, and over the last 17 years has researched the 14th Amendment's original intent, the debates written in the Congressional Globe, along with the study of numerous United States Supreme Court citizenship and jurisdiction cases". For one to claim she or he is scholar, a requisite list of published articles in scholarly, peer-reviewed journals should be offered. The site only lists a few op-ed columns. A cursory JSTOR and Lexis-Nexis search yielded no articles by purported scholar Ted Hilton. I could say that I was a brain surgeon, but that doesn't make it true.

4. Under section marked "Facts", the site notes that "90% of illegal migrants lack non-government medical insurance. One third of the estimated 10 million uninsured children are Latino." This is a bit of trickery, of the apples-to-oranges variety. They set up the expectation of talking about illegal immigrants with the first sentence, and then switch and talk about Latino children in general-- not specifically Latino children who are here illegally. This creates the idea that there are 10 million illegal immigrant children without non-government healthcare, which isn't true. The Center for Immigration Studies estimated California's illegal immigrant population in 2005 to be just over 2.5 million-- that's the TOTAL illegal immigrant population, not just children. The conflation of Latino/immigrant/illegal immigrant is at best, disingenuous, and at worst, a racially-motivated and calculated manipulation of available data.

5. Fear-mongering, as exemplified by the following statement: "Women from nations all around the world, even terrorist sympathizers, can take advantage of the "birth tourism industry" at taxpayer expense and the refusal of Congress to correctly define the jurisdiction clause" (emphasis mine). What a strategy! All those Guatemalan Taliban having children in the U.S., so that 16 - 20 years later these children can be terrorists in the U.S.! Brilliant.

6. The worst bit of semantic trickery comes from the following statement: "Most Californians do not know this, and the Democrat controlled Legislature is not going to tell them: Illegal aliens are paid 18 years of welfare checks for the anchor child in a child-only Cal-WORKS case, while federal regulation allows a five year maximum for citizens." The implication of this statement is heinously false. First of all, illegal immigrants do not receive welfare benefits. If their children are U.S. citizens, the children receive public assistance (which is of course, entrusted to their parents, since most toddlers don't have checking accounts). These U.S. citizen children are entitled to welfare, should they need it, for 18 years. The federal regulation that stipulates a five year maximum is for adults, not children. All children in the U.S. who are citizens are entitled to 18 years of public assistance if they need it. Period. That is a fact, and this organization's website is polluting the public discourse with disingenuous innuendo and semantic gamesmanship.

That this proposition has support from sitting members of the Congress is shameful. Representatives Dana Rohrbacher [(R) - Huntington Beach] and Brian Bilbray [(R) - Solana Beach] should be completely appalled to be linked with an organization whose willful manipulation of the facts is so obvious and blatant. I expect members of Congress, even those with whom I disagree, to exercise due diligence and intellectual honesty before supporting organizations that intentionally blur the facts of an important debate. Shame on you both.