Immigration issues come around again
“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 immigrants — 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” — U.S. Supreme Court, Plyler v. Doe, 1982.
We’ve really gotten a grip on that problem over the last 26 years, haven’t we?
Not. In Plyler v. Doe, the court struck down a Texas law that denied illegal immigrants access to public schools.
Today, North Carolina confronts a related issue: Should illegal immigrants be admitted to degree programs in its community college system?
The same arguments presented to the Supreme Court a generation ago echo here now, and they produce the same differences of opinion.
The court was sharply divided, 5-4. Likewise, contradictory legal views have been aired in North Carolina.
The Attorney General’s Office issued an advisory letter stating that community colleges may violate federal law if they admit illegal immigrants. Gov. Mike Easley, a former attorney general, stated the contrary view — backed by the U.S. Department of Homeland Security.
Nevertheless, the community college system opted to heed the advice of the current attorney general, Roy Cooper.
The UNC system is left out of this discussion, but only for now.
Easley leaves office at the end of the year, and both candidates to replace him disagree about the community college policy. Proceeding in the face of likely opposition from the next governor, and without support from the legislature, wouldn’t be prudent for the community college system, whose board is appointed by political leaders.
I get the sense, however, that college officials would rather open their doors. And they have supporters, who say it doesn’t make sense to educate these students through 12th grade then tell them they can go no further. Kids shouldn’t be penalized when it was their parents who brought them into this country illegally . They should be allowed to reach their full potential and contribute as much as possible to the community. Finally, advocates note that these students — barely a handful so far — pay full tuition, not the taxpayer-subsidized in-state rate.
Opponents counter, with forceful logic, that state resources ought to be reserved for legal residents and that these students aren’t legally entitled to employment anyway — college education or not.
In Plyler, the court rejected the state’s claim of a compelling interest in denying education to illegal immigrants. The cost did not create an unreasonable burden, it said.
That was then, when the country’s illegal immigrant population was estimated at 3 million to 6 million. It’s triple that today. Would the surge of uninvited newcomers change the court’s view?
Frankly, I think it would disgust the justices of 1982.
Justice Lewis Powell blamed Congress, “Vested by the Constitution with the responsibility of protecting our borders and legislating with respect to aliens,” for failing to provide “effective leadership.” But he nevertheless would not leave the children of illegal immigrants “on the streets uneducated.”
Chief Justice Warren Burger agreed “it is senseless for an enlightened society to deprive any children — including illegal aliens — of an elementary education.” But, noting that the failure of immigration enforcement had created “a socioeconomic dilemma,” he insisted “it is not the function of the Judiciary to provide 'effective leadership’ simply because the political branches of government fail to do so.”
Those words ring true today. This is a bigger mess than ever, but it can’t be fixed by the courts or by the state of North Carolina. We’re all still waiting for Washington.
Call me at 373-7039 or e-mail at dgclark@news-record.com
Additional thoughts below:
The court based its opinion, written by Justice William Brennan, on the "equal protection clause" found in Section 1 of the Constitution's 14th Amendment.
Brennan wrote:
"Use of the phrase 'within its jurisdiction' thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish."
I would raise the question of whether a person who is not legally eligible for residency within the state is truly "subject to the laws" of that state. Isn't such a person declaring himself to be outside those laws from the start? Of course, it means he can be arrested and prosecuted for brreaking the laws of the state -- presumably federal laws, too.
Brennan acknowledged that illegal immigrants are subject to deportation at any time, but that status today doesn't mean that will be their status tomorrow, he wrote.
"But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen. In light of the discretionary federal power to grant relief from deportation, a State cannot realistically determine that any particular undocumented child will in fact be deported until after deportation proceedings have been completed. It would, of course, be most difficult for the State to justify a denial of education to a child enjoying an inchoate federal permission to remain."
Interesting. By that reasoning, a state must assume that the federal government will, or at least might, confer legal status upon an illegal immigrant and therefore treat that person as if legal status already has been granted.
By the same reasoning, denying a state driver's license to an illegal immigrant, which North Carolina and almost all states do, might be considered a violation of the equal protection clause.
Certainly, any grounds for denying illegal immigrants admission to public colleges and universities would be constitutionally suspect as well.
Writing the dissenting opinion joined by Justices Rehnquist, White and O'Connor, Burger drew a distinction between equal protection and the conferring of equal government benefits:
"Without laboring what will undoubtedly seem obvious to many, it simply is 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. By definition, illegal aliens have no right whatsoever to be here, and the state may reasonably, and constitutionally, elect not to provide them with governmental services at the expense of those who are lawfully in the state."
So, suppose a new case came before the court -- not revisiting the Plyler question but examining whether the same principles as outlined in the majority opinion should be applied to public higher education. Which view would prevail on the present court or one as it might be constituted in the near future, Brennan's or Burger's?
I won't be surprised if we have a chance to find out.
Comments (8)
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"We’re all still waiting for Washington." I agree. There's a simple policy that Washington could implement, and it'd work better and cost less than border fences and high-tech security systems. The policy is to do more workplace inspections. If employers faced a greater risk of getting fined for hiring undocumented workers (and the fine should be large enough to catch employers' attention!), the cost of hiring illegals would rise and the flow of such workers into this country would drop off.
Unfortunately, over the past 25 years the federal government has decided that inspections aren't its responsibility. From workplace safety to product safety (which the U.S. has effectively out-sourced to Chinese manufacturers), the number of federal inspectors has fallen dramatically. When I wrote this N&R piece, I found that the number of businesses fined for hiring illegals had fallen from 417 in 1999 to just three in 2004. No employer is going to adjust hiring practices when there are only three fines levied per year.
Sometimes the low-tech solution is the best one.
Posted on May 21, 2008 9:11 AM
By the way, the federal government's raid last week on an Iowa meatpacking plant appears to have focused on the workers, not the employers. Nearly 400 workers were arrested, but so far no fines have been levied against the employer.
Posted on May 21, 2008 9:14 AM
I completely agree with Andrew - to stem the tide of illegal immigrants, the only short-term feasible option is to drastically limit the availability of work. Like he mentioned above, the fine employers face for employing such a person needs to be stiff enough for them to feel it, but not so harsh as to make them shutter their doors. However, if that particular place of business is inspected/raided again and they have re-hired more illegal immigrants, the penalties must become steeper.
Conversely, it might be possible to provide businesses in a field where illegal workers are the norm a temporary tax incentive if they are found to not have any on their staff. The funding for this would come directly from a portion of the fines levied against businesses not in compliance.
The next problem is what to do with those illegal workers once they've been caught...
Posted on May 21, 2008 10:14 AM
The federal government is wrong to be so lenient. These businesses are in violation of the law and they're gaining an unfair advantage over competitors that do follow the rules.
Employment of foreigners should be strictly limited to those with work visas. Likewise higher education for those with student visas.
That said, the government probably should issue a lot more work and student visas -- but those receiving them will have to authenticate their identification and abide by all appropriate laws and regulations.
Posted on May 21, 2008 11:34 AM
I love jumping around on both sides of an issue. But hey, wherever the economics takes me. It turns out that the cold, hard facts of workforce development are that we may not be able to supply enough SKILLED native-born workers to fill the higher-tech jobs our economy will create over the next couple of decades. I won't go so far as to say that we're turning into a nation of dummies, but it's not looking good.
This isn't a new trend, and we've been making do thanks to immigrants (mostly legal, of course, at that end of the skills spectrum). But with student and faculty visas harder to get, perhaps we need to consider other options. Studies show that the second generation of immigrants, both legal and illegal, tend to be better educated than their native-born counterparts. If it's skills we need, are tighter restrictions on immigration tantamount to cutting off our economic nose to spite our face?
Posted on May 21, 2008 2:00 PM
You have to weigh costs and benefits. Inviting everyone into the work force with no restrictions may help fill deficiencies but the same tide will wash in many more people whose presence might not be as positive -- people who demand social services, burden other public institutions, have an impact on crime and the correction system, etc. Kind of like where we are now.
If our economy needs the help of guest workers or immigrant labor, let's find targeted ways to deliver that help with a minimum of detrimental illegal immigration.
At the same time, we're writing off too much of our native talent. Time to stop dumbing down!
Posted on May 21, 2008 2:13 PM
The answer to Andrew's dilemma is pretty simple: import skill. Banking on second-generation skill is, at best, a risky venture, and it runs squarely into a debate America doesn't want to have regarding cultural capital. Put simply, some cultures transmit values and behavior patterns that assimilate well into an information economy. Some don't. The impolite way of putting this is that a Korean immigrant will, on average, bring more skill--genealogical as well as actual--than a Mexican immigrant. (The best test of cultural capital is to look at the country of origin: how has it adapted to a modern economy?)
If the best and the brightest want to come to America to work, we'd be foolish to keep them away.
Posted on May 21, 2008 11:48 PM
I don't know about the ethnic generalizations, brian444, and I think you'd be surprised what the data say about Latino immigrants. But I agree that immigration policy should pay attention to skills. Unfortunately, foolishly keeping the best and brightest away appears to be precisely what we're doing. Since 9/11, the number of foreign students and researchers who come here for school and work has fallen significantly, at a time when we need that number to grow.
We have new requirements, tightened standards, etc., and while some of these new regs seem innocuous to us (e.g. fingerprinting), the overall effect has been to get foreign talent thinking, hey, maybe Europe or Japan would be more welcoming to a researcher with a funny name like mine. At the same time, Europe and Japan are increasing research funding while we are not (unless it relates to national security).
History may show that one of the ironies of 9/11 was that the biggest long-term harm done to the U.S. was self-inflicted.
Posted on May 22, 2008 8:41 AM