Parts of Prop. 187 May Be Blocked 2 or More Years : Law: Analysts say some portions vulnerable. State will ask for time to draft rules to avoid constitutional pitfalls.

As the court fight over Proposition 187 resumes today in Los Angeles, many constitutional analysts say the measure’s legal flaws could block some provisions for two to three years until the U.S. Supreme Court or the state high court makes a final ruling.

“I think at least a substantial part will be enjoined, and there is a good chance all will be enjoined,” said USC law professor Erwin Chemerinsky.

State Atty. Gen. Dan Lungren, a supporter of the initiative who will make a procedural move to keep the legal battle before elected state judges, conceded that parts of Proposition 187 are vulnerable to legal challenge.

“I’ll just say this,” Lungren said, “I am glad there is a severability clause” that lets the initiative remain law even if certain provisions are struck down.

At an afternoon hearing today in U.S. District Court in Los Angeles, the state will argue that judges should not block enforcement of Proposition 187 until regulations to implement the law are completed. The regulations, Lungren said, may avoid the constitutional pitfalls that a strict reading of the ballot measure could raise.

Opponents of the sweeping measure vow to force the state to defend the initiative itself, not the regulations. They will seek a court order today barring implementation of the law, citing cases of illegal immigrants who already have had problems getting public benefits since voters approved the proposition.

“They know they have serious constitutional problems,” complained Mark Rosenbaum, an American Civil Liberties Union attorney who is attempting to invalidate the entire measure, “and they are really trying to write a different statute.”

Lawyers and legal scholars are divided over the ultimate fate of Proposition 187 and which Supreme Court--California’s, which is dominated by conservatives appointed by Republican governors, or the nation’s--would be more likely to uphold more of the measure that seeks to deny most public services to illegal immigrants.

Legal analysts predicted the following twists in the court wrangle over the measure:

* A provision preventing illegal immigrants from attending public schools probably will be blocked by courts pending review by either the state or U.S. Supreme Court. A San Francisco Superior Court judge already has issued a temporary order prohibiting the state from enforcing the provision, which wasn’t due to take effect until Jan. 1.

* Arguments that the initiative usurps federal authority over immigration will prove to be a thornier legal question. Although the U.S. Supreme Court in the past has prevented states from passing certain laws aimed at illegal immigrants, the high court could interpret federal law as a floor that states can build upon as long as the final result mirrors national policies.

* Some of the measure’s provisions that require reporting of illegal immigrants probably will be struck down, while others will withstand court scrutiny. Careful regulations, however, could save some of the reporting requirements by making them consistent with federal law.

* The state, which is defending Proposition 187, probably will attempt to consolidate the eight federal and state lawsuits against the measure and move the case out of Los Angeles. U.S. District Judge Mariana R. Pfaelzer, who has been selected to hear the four suits filed in Los Angeles, is considered a smart, independent liberal who is more likely to rule in favor of the opponents than the state.

A Carter appointee, Pfaelzer is out of town, and U.S. District Judge Matthew Byrne Jr., considered a moderate liberal, will preside over today’s hearing.

Analysts said the provision banning illegal immigrants from attending public schools is the most vulnerable, at least temporarily, because the U.S. Supreme Court struck down a similar Texas law in a 1982 case called Plyler vs. Doe.

“It is about as sure a thing there ever is in a legal question,” said Chemerinsky, who predicted that the provision will be blocked by trial and appellate courts pending high court review.

Although the current U.S. Supreme Court probably would have decided Plyler differently, analysts said, the justices may be reluctant to overturn precedent.

“There is a decent chance” the high court will reverse the decision, said UC Berkeley constitutional law professor Jesse Choper, “but any time you challenge a precedent you have an uphill battle. The people who sought to overturn Roe vs. Wade learned that.”

The initiative must comply with both the state and the U.S. constitutions. If the California Supreme Court struck down the schools provision on state constitutional grounds, review by the U.S. Supreme Court would be unnecessary, Chemerinsky said.

The California high court has previously interpreted education as a fundamental interest under the state Constitution. This interpretation creates a special legal hurdle that must be crossed by anyone attempting to deny access to public schools.

Because there is no such hurdle under federal law, some believe the opponents of Proposition 187 would have a better chance before the state court.

Most legal analysts, however, accurately predicted that Lungren would prefer to try the cases before elected state judges. Federal judges have lifetime tenure, so are shielded from political pressures, and Lungren also knows that the U.S. 9th Circuit Court of Appeals, the first stop for most appeals, includes many liberal judges.

The California Supreme Court, which has only one Democrat, is reputed to bend over backward to uphold voter initiatives. The court could simply distinguish the initiative from previous education cases and uphold the schooling provisions, said Chemerinsky.

The ACLU lawsuit, one of the four filed in Los Angeles federal court, is the broadest in scope because it tries to overturn the entire initiative on a variety of legal grounds, including the supremacy clause of the U.S. Constitution.

States are prohibited under this clause from engaging in foreign relations, according to Loyola constitutional law professor Karl Manheim, who is working with the ACLU and who said immigration is an “outgrowth” of foreign policy.

He contended that Proposition 187 already has sparked anger within the government of Mexico. Top Mexican officials sent a diplomatic note to the U.S. government protesting the initiative before the election.

Some legal analysts described the ACLU arguments as strong but less certain to prevail in court than the cases filed against the school provisions. Chemerinsky said the U.S. Supreme Court has twice stopped states from enacting immigration regulations based on the argument that states cannot step into issues over which the federal government already has jurisdiction.

The court ruled about 50 years ago that Pennsylvania was illegally preempting federal law by requiring illegal immigrants to register in the state, the USC law professor said. In 1982 the high court also declared unconstitutional an attempt by Maryland to deny resident illegal immigrants in-state college tuition, he added.

“I think there are arguments to be made on both sides,” Whittier Law School professor Mary Ellen Gale said. “The U.S. Supreme Court has taken a fairly strong view (in favor) of state rights.”

She noted that the U.S. Supreme Court upheld the right of California in 1983 to pass a law prohibiting new nuclear power plants unless the electric company building them could show it had a safe means of disposal for nuclear waste.

The federal government argued unsuccessfully that the state law was illegal because nuclear safety is the responsibility of the federal government. But the high court, Gale said, decided the state had not preempted the federal role because the law was aimed at economic concerns, not safety.

She also said the requirement of Proposition 187 that police investigate the immigration status of arrested suspects “probably would not be unconstitutional.”

Other analysts said requirements that social workers report illegal immigrants to immigration authorities conflict with federal regulations aimed at protecting patient confidentiality in Medi-Cal programs and probably would be thrown out by the lower courts.

Most illegal immigrants are not covered by Medi-Cal in non-emergency situations anyway, say officials. Lawyers fighting to derail the initiative contend that some immigrants without green cards are entitled to public-assisted health care under federal law but would not be under Proposition 187--grounds for striking down the health care provisions in the measure.

But Lungren said: “People have to look at what our regulations are going to say. . . . There will be a serious attempt to have them drawn in a way that makes them consistent with the Constitution and current federal law.”

Lungren refused to say whether he thought the courts would uphold a section of Proposition 187 that opponents find the most troubling. It requires school districts to check the immigration status of students’ parents and to report those without legal documents to authorities. That provision would take effect in 1996.

“From a public policy standpoint,” said Lungren, who endorsed Proposition 187 on the eve of the election, “that is the issue that gave me the most trouble in deciding whether to support it.”

Chemerinsky said, however, that he doubted any regulation preventing illegal immigrants from attending public schools would be upheld by the courts.

“Maybe the regulations can save some of the reporting provisions,” he said. “Courts are often willing to allow laws to be narrowed if there is a way to save them. But it really has to be a situation . . . where the law is not so fatally flawed that it is clearly unconstitutional.”

Times staff writers Paul Feldman and Stanley Meisler contributed to this report. Feldman reported from Los Angeles and Meisler from the United Nations.

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