Salvos Fired in Broad Assault on Welfare Law

Gov. Pete Wilson’s determination to end publicly funded prenatal care for illegal immigrants has spawned one of the first flurries in what is likely to become a nationwide blizzard of litigation arising from the new federal welfare law.

Anticipating imminent action by Wilson, activists are seeking a hearing in U.S. District Court in Los Angeles on Tuesday to argue that the threatened cutoff in prenatal care would violate the existing injunction against Proposition 187, the 1994 ballot initiative targeting illegal immigrants.

Meanwhile, in New York City, Mayor Rudolph W. Giuliani filed a federal suit Friday challenging the constitutionality of the welfare law--and parallel sections of the new immigration law approved last month--that would allow police and other public servants to turn in suspected illegal immigrants.

Across the nation, teams of public interest lawyers, aided by pro bono private attorneys, are busily studying relevant appeals court decisions and combing social-service agencies for prospective test-case plaintiffs. The expected lawsuits would cover not just the provisions related to legal and illegal immigrants, but also sections of the welfare law affecting U.S. citizens.

“This is just the beginning of a systematic set of inquiries in the federal and state courts to clarify and modify elements of the welfare and immigration reform legislation,” said Arthur C. Helton, adjunct professor at New York University School of Law and an immigration expert.

Much of the legal drama is expected to play out in California, where Wilson has vowed speedy implementation of all provisions affecting illegal immigrants.

Legal activists say Wilson’s threats to cut off care to expectant mothers, whose children would be U.S. citizens at birth, is a backdoor scheme to implement a key provision of Proposition 187--the popular state ballot measure that a federal judge last year halted from taking effect.

Wilson counters that he would simply be following the provisions of the federal welfare overhaul signed into law in late August. “This issue is separate and apart from Proposition 187,” said Sean Walsh, spokesman for Gov. Wilson.

No other state has moved as swiftly as California to comply with the welfare law’s new bans on public aid to “ineligible” immigrants--a broad new category encompassing millions of illegal immigrants and tens of thousands of others in quasi-legal status who were previously eligible to receive many benefits.

Giuliani, meanwhile, has taken the opposite tack than Wilson. In filing suit, the New York mayor said he fears that the threat of turning in illegal immigrants would result in their avoiding reporting crimes or failing to seek emergency hospital treatment.

While lauding Giuliani’s intentions, some immigrant advocates are privately chagrined that the mayor is rushing to court--and risking a precedent-setting defeat--over a somewhat obscure provision of the law that lacks a specific enforcing mechanism.

Both the Giuliani and California prenatal challenges underscore the fact that much of the initial litigation against the new welfare law is expected to focus on wording concerning immigrants. But a separate category of lawsuits is expected to soon arise from such across-the-board issues as work requirements and benefits cutoffs.

For example, California authorities have already been put on notice of a likely challenge emanating from the state’s “disorderly” and hasty implementation of new food stamp restrictions, said Clare Pastore, staff attorney with the Western Center on Law and Poverty.

The coming cases, experts say, will raise fundamental constitutional questions as well as more-mundane regulatory concerns. Several activists acknowledge privately that one goal of the suits would be to delay implementation of the law in hopes that Democrats will regain control of Congress and scuttle much of it.

The Giuliani legal challenge falls largely under the umbrella of the Tenth Amendment, which reserves for the states powers such as policing. Federal and state privacy guarantees may also come into play if health professionals, teachers and other public workers are henceforth allowed, if not encouraged, to inform on suspected illegal immigrants.

Advocates in California are also contemplating a 10th Amendment challenge against Gov. Wilson’s recent executive order directing agencies to cut off state-funded benefits to illegal immigrants “as expeditiously as reasonably practicable.” The welfare overhaul specifically outlaws most state and local government assistance for illegal immigrants, unless states pass special laws authorizing such expenditures.

The anticipated states-rights argument in California is somewhat ironic. Immigrant advocates last year won their injunction against implementation of much of Proposition 187 by convincing a federal judge that the initiative was a state scheme to usurp federal authority.

Legal activists are also considering a range of prospective challenges to the welfare law under the equal protection clause of the 14th Amendment. The U.S. Supreme Court used an equal protection rationale in its landmark 1982 decision, Plyler v. Doe, that effectively barred states from denying public education to illegal immigrant youngsters.

However, litigators concede it will be difficult to convince any court to expand due-process rights for illegal immigrants--indeed, many fear a future reversal of the Plyler protections.

The new, explicit congressional direction to the states may be especially crucial in the contentious arena of cuts in benefits to legal immigrants. In one of its most sweeping actions, Congress gave states the option to deny various federally funded benefits--including Medicaid and cash welfare--to legal immigrants who are noncitizens. States would also be permitted to restrict noncitizens from exclusively state-funded benefit programs.

That new congressional authority could chip away at the Supreme Court’s Graham v. Richardson (1971) ruling, which essentially held that states could not treat legal immigrants differently than citizens for benefit purposes.

“We now have clear direction from the federal government that states have the green light to discriminate against permanent legal residents for certain benefits,” noted Charles Wheeler, senior attorney with the Catholic Legal Immigration Network, based in San Francisco.

Another disputed welfare issue centers on Congress’ decision to restrict legal immigrant participation in two big-ticket federal aid programs--food stamps and Supplemental Security Income, the latter for the aged blind and disabled. Courts have generally upheld Washington’s authority to narrow immigrant eligibility, based largely on federal dominion over immigration and foreign relations. But attorneys say the scope of the new restrictions are unprecedented and may be open to new challenge.