Prop. 187 Needs Aggressive, Not Reactive Defense

It has been more than two years now since voters in California overwhelmingly approved Proposition 187, seeking to cut off government benefits to illegal aliens. Almost none of the law, which received the support of 59% of the voters, has been implemented because of a ruling by a federal judge that Proposition 187 was an unconstitutional preemption of federal authority over immigration matters.

That the initiative’s opponents have been able to delay implementation came as no surprise. Knowing that they could not win at the ballot box, their strategy was to kill it in the courts. What is surprising and dismaying to millions of California taxpayers is how little the state has done to defend the will of the voters. From Day 1, the office of Atty. Gen. Dan Lungren has been in a reactive mode, dutifully responding to every legal maneuver by opponents of 187, but showing no inclination to go on the offensive to implement the mandate of the voters. Cynics might believe that the core of Lungren’s strategy is to keep the whole matter quiet long enough for him to pursue election to the governor’s office without generating the kind of controversy that an aggressive defense of 187 would certainly create.

As Lungren’s own people have noted, the ground in the legal battle over Proposition 187 has shifted in favor of those who support denying government benefits to illegal aliens. When Judge Mariana R. Pfaelzer struck down most of the proposition on Nov. 20, 1995, she ruled that 187 was a state scheme to regulate immigration, a matter that is solely under the jurisdiction of the federal government. In Pfaelzer’s opinion, the federal government could, if it chose to, bar illegal aliens from receiving most benefits, but California did not have the authority to act on its own.

In 1996, Congress answered Pfaelzer’s challenge. Both the welfare reform measure, signed by President Clinton in August, and the immigration reform bill that he signed in September incorporated most of the provisions of Proposition 187. Those new federal laws require states to take steps to ensure that illegal aliens do not receive public assistance except in emergencies.

True to her 1995 ruling, when advocates for illegal aliens came before Pfaelzer seeking to block the state’s plan to cut off prenatal care, she ruled in favor of the state. In her Nov. 1, 1996, decision, Pfaelzer noted that California was merely complying with federal law when it sought to deny this service to unlawful residents. (Another judge has temporarily stopped the state from cutting off prenatal care, on the ground that California was acting too hastily.)

Pfaelzer as much as invited the state to ask her to vacate her 1995 ruling. But Lungren’s office has not availed itself of this wide-open door. There has not even been a public relations effort on Lungren’s part to interpret Pfaelzer’s ruling on prenatal care as a vindication of Proposition 187 and a clear indication that her concerns about federal preemption had been satisfied. In fact, Lungren let this victory pass so quietly that most Californians are not even aware that a major hurdle has been cleared.

With the costs of illegal immigration continuing to mount, California voters are not likely to be satisfied with Lungren’s low-key, go-slow defense strategy. In cold political terms, that dissatisfaction will not help Lungren achieve his aspiration of moving into the governor’s office in two years. For that to happen, Lungren is going to need the enthusiastic support of the voters who backed Proposition 187 and who continue to believe that illegal immigration is one of the most serious issues facing California. Many 187 backers have not forgotten his lukewarm endorsement of the measure, literally on the eve of the 1994 election. Opponents of 187 are unlikely to support him no matter how lackluster his defense of the measure is.

There is growing frustration among taxpayers in California that in spite of a clear, democratic expression of voter opinion, Proposition 187 will never be enforced since the state’s top law enforcement officer is satisfied with merely responding to a never-ending series of challenges put forth by the opposition. Just as Proposition 187 itself was a message from the voters that they would not wait forever for the government to address the problem of illegal immigration, their patience is wearing thin with a foot-dragging defense strategy.