Storm Over Prop. 187 Misses the Nuance

Winding from Chicago to L.A., Route 66 never took as long to get where it was going as Proposition 187 has. So it’s unsurprising that California’s 1994 voter-approved initiative to bar illegal immigrants from receiving publicly funded benefits again has state politicians wrestling over it.

For California Gov. Gray Davis, a Democrat, the latest twist in the saga may emerge as a defining moment in his governorship. Davis’ unwillingness to leave well enough alone after a federal judge found most of Proposition 187 unconstitutional last year has left his coreligionists in a lather.

Among other things, the initiative would have denied illegal immigrants a public school education and eliminated nonemergency health and welfare services. But in mid-April, instead of just letting the putatively unconstitutional dog lie, the governor requested the U.S. 9th Circuit Court of Appeals in San Francisco to resolve constitutional issues pertaining to Proposition 187 through mediation.

Davis cited his oath of office to enforce all the laws, regardless of his personal views as the reason for his request. “I also firmly believe elected leaders should respect the will of the people when they have spoken,” he said. But anyone who may have thought he was being seized by the ideological ghost of his Republican predecessor, Pete Wilson, who supported Proposition 187, was soon proved wrong. Legal scholars noted that mediation is not generally used in larger cases involving disagreements over core legal principles. Something else must be up, they implied.

Indeed, mediation is likely to drag on for a long time. So long, that supporters of Proposition 187 will probably argue that the will of the people is being delayed and even blocked by keeping the U.S. Supreme Court from having a chance to rule on the question. Some Latinos and liberals argue that Proposition 187 does not pass constitutional muster, but they would just as soon prevent the high court from deciding.

“We’re disappointed that he didn’t just drop the appeal,” Peter A. Schey, a lawyer for the League of United Latin American Citizens, said. Lt. Gov. Cruz Bustamante was less diplomatic. “I saw him (Davis) proudly say that ‘today was the end of an era of wedge-issue politics.’ I didn’t know that meant ‘pending appeal,’ or ‘pending mediation,’ or ‘pending arbitration.’ ”

It is very tempting to portray Davis’ pirouette on Proposition 187 as a ploy worthy of a just another slick politician--so I’ll go ahead and do it. He is trying to be all things to all people. He should have sponsored an appeal that would have allowed the U.S. Supreme Court a chance to decide the matter once and for all.

But a proposition approved by a margin of 59 to 41 does not count for much for liberal Democrat officeholders concerned about the politics of immigration. Latino and liberal politicians may have been unnerved by scenes of thousands of Mexican flag-toting immigrants protesting the initiative prior to the vote. Perceiving their own political future as tied to a growing Latino population, they may be more desirous of adding to their political base than actively defending democracy and sovereignty.

It’s not that the liberal and libertarian politicians in California are uniformly wrong. It’s their lack of nuance that misleads them.

Here’s the point: Proposition 187 is about immigrant policy. But the federal laws to stop undocumented border crashers from entering the United States are about immigration policy. Logically, if one addresses immigration policy, there will be no need to confront the netherworld of immigrant policy.

Yet it is precisely the neglect of immigration policy that led to Proposition 187. For any political jurisdiction to wink at illegal immigration while calling for an end to health and educational benefits for the families of those newcomers is suspect.

But politicians who wink at illegal immigration while also posing as the defenders of illegal immigrants trying to hold on to public benefits are no less misguided.

The danger is that Congress has remained so indifferent to illegal immigration for so long that a backlash is now in a recurring mode. High levels of immigration, legal and illegal, are so concentrated in particular states--California chief among them--that well-meaning citizens could increasingly decide to give up the ghost on federal immigration reform.

Should the emphasis continue to be on immigrant legislation rather than immigration legislation, fights over more Proposition 187s will have no foreseeable end.