Immigration: The Problem Is Federal Rules : Wilson should cut benefits to force a Supreme Court review.

At a National Review Institute conference in San Diego recently, immigration was a topic on which conservatives were sharply divided. Some opposed it for basically chauvinistic reasons; others said that immigrants, whether legal or illegal, do unpleasant work that needs to be done. Moreover, newcomers often appreciate liberty more than those who were born here. All agreed, however, that no nation can afford to provide health, education and welfare benefits to anyone who manages to evade border guards, and this is the issue that Gov. Pete Wilson has brought to the forefront.

Wilson is right to call for a change in the rules affecting the treatment of newcomers. Federal and state regulations oblige the state to provide an expensive array of benefits to illegals and their offspring. In addition, foreign visitors here legally are able to take advantage of these rules, receiving free health care even if they are not poor. No government in the world can possibly afford to be so generous with its taxpayers’ money for any length of time.

Wilson’s complaint was addressed to President Clinton and published in several newspapers. He pointed out that if illegals give birth on U.S. soil, “we pay for delivery and confer U.S. citizenship upon the baby.” What he did not say--questioning the provision of benefits to children is politically sensitive--is that the child can also become entitled to Aid to Families with Dependent Children, the principal U.S. welfare program. As the guardian of the minor U.S. citizen, the mother gets the welfare check, even though she is here illegally.

“There has been explosive growth in that area--as high as 25% in 1991-92, up 17% this year,” Amy Albright of the state Department of Social Services told me. “It is the fastest growing area of welfare dependency in California.”

In response, Clinton has said that he “sympathizes” but opposes changing the Constitution so that babies born here of illegal parents no longer automatically become citizens. Perhaps the Constitution should not be amended, but there is no reason why the statutes governing eligibility for federal benefits should not be changed to exclude those who arrived illegally, as Wilson urged. He asked Congress to repeal the federal mandates that make illegal immigrants eligible for health, education and other benefits.

The public education of children illegally in the state is estimated to cost taxpayers $1 billion annually. In 1982, the U.S. Supreme Court ruled, 5-4, that public education could not be denied to children who had not been legally admitted to the country. The 14th Amendment’s equal-protection clause “extends to anyone, citizen or stranger,” and the court construed equal protection as applying to education because of the “lasting impact of its deprivation on the life of the child.” Today, says Maureen DiMarco, Wilson’s secretary of child development and education, state officials are not even permitted to ask schoolchildren if they are here legally or not. Public-housing authorities feel similarly constrained.

As three members of that majority on the 1982 court have since left, Wilson should consider denying benefits in a test case, thereby provoking a lawsuit that would rapidly return the issue to the Supreme Court. Apparently, he has discussed this possibility with his advisers.

Supporters of immigration, prominent among them Julian Simon of the University of Maryland, frequently argue that immigrants contribute more to the economy in labor and taxes than they take out in government services. This has been true in the past; it may still be today. But as Rep. Dana Rohrabacher (R-Huntington Beach) points out, we have recently “changed the dynamics” of immigration.

As a result of the 1986 immigration reform law, employers face penalties if they hire illegal aliens. And the five-year moratorium on social services for those who received amnesty through that law has ended. Meanwhile, government agencies have been known to advertise for illegal clients: After the Los Angeles riots, the Federal Emergency Management Agency passed out leaflets pointing out that help was available even to those who were not here legally.

Liberals who admire the welfare state should be as concerned about these developments as conservatives. Perhaps that is why California’s Democratic Sens. Barbara Boxer and Dianne Feinstein want to strengthen the Border Patrol. If the present insanity continues without change, there can be only one solution: Benefit levels will have to be cut, because taxes cannot be raised any higher. Those who have accused Wilson of political opportunism should recognize that good politics is not necessarily bad policy.