The fact that universities consider many factors in enrolling students is no excuse for including race among those factors. The Fourteenth Amendment explicitly provides for equal protection of all races. Government-sponsored racial discrimination violates the Constitution.
Reacting to recent Court decisions, Ward Connerly, one of America’s leading advocates for merit-based admissions policies, wrote:
Let it be said that when given a chance to complete the liberation of black Americans, on June 23, 2003, five justices consigned them to another generation—or, perhaps, a term of indefinite duration—of virtual enslavement to the past. Instead of being free to just be Americans, the Court has entrapped American-born blacks in a seemingly inescapable web of being set apart from the rest of America, as well as prolonging the suspicion and stigmatization that is visited on the accomplishments of high-achievers who are perceived to benefit from “diversity” and “affirmative action” just because of their skin color.45
At various times in our history, the Court has promoted slavery, segregation, and internment based on race and ethnicity. Today it promotes reverse discrimination. Mark up yet another victory for judicial activism and a setback for the rule of law and individual liberty.
CHAPTER SEVEN
CITIZENSHIP UP FOR GRABS
“The Constitution does not constitute us as ‘Platonic Guardians’ nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, ‘wisdom,’ or ‘common sense.’…We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policymaking role.”
Chief Justice Warren Burger, 19821
If there is one area of law that should be universally understood as being largely outside the purview of the Supreme Court’s social engineering reach, it is immigration. Article I, Section 8 of the Constitution states that Congress shall have the power “to establish an uniform Rule of Naturalization.”2
That, however, is not how events have transpired. For the last several decades, the Supreme Court has effectively trampled on Congress’s constitutionally mandated, separate, and exclusive power and taken upon itself the task of rewriting America’s immigration laws. The Court has abused its limited authority and has become, effectively, the architect of the rules governing not only how immigrants enter and remain in America, but whether those immigrants can avail themselves of social benefits that states and even Congress have sought to limit to U.S. citizens.
Thanks to succeeding Supreme Courts, illegal immigrants—not legal immigrants but aliens who have broken U.S. law to enter this country—are entitled to a public school education at the U.S. taxpayers’ expense. The Court has also ruled that despite laws to the contrary, noncitizens who are legally in the U.S. can qualify for welfare, can seek tuition assistance to attend colleges and universities, and can take competitive civil service jobs and practice law.
According to the Federation for American Immigration Reform (FAIR), Arizona spends $1.3 billion each year on illegal immigration.3 The same FAIR study reported that every Arizonan essentially pays a $700 annual tax to support the direct costs of illegal immigration. The New York Times reported in 2002 that “a wave of immigrants in the last 10 years, particularly in rural areas far from traditional immigration hubs, has left school districts across the country desperately short of people qualified to teach English.”4 In fact, the number of students who have limited English skills has doubled to approximately five million in the last ten years.5 Educating illegal immigrants in the public schools costs the states at least $7.4 billion annually, according to FAIR.6 California alone spends an estimated $2.2 billion annually to educate illegal immigrant children.7 And the Washington Times reported that hospitals near the U.S.-Mexican border spent, in 2000, almost $190 million to treat illegal aliens and another $113 million in ambulance and follow-up fees.8
Before American independence, each of the thirteen colonies developed its own immigration policies. Most of these policies were geared toward encouraging immigration from Europe to help alleviate severe labor shortages throughout the vast expanse of the colonial territories. 9 Land grants and exemptions from taxes were popular enticements to immigrants to settle in the New World. However, most of the colonies also had laws in place to discourage certain types of immigrants—specifically Roman Catholics.10 Many of the colonies levied head taxes on ship captains for any Catholic they brought ashore. Certain colonies offered land grants and tax benefits only to Protestants.11 As a result, the majority of the early immigrants came from Protestant England and Germany.
After 1776, the new Congress did not preempt the states’ existing immigration and naturalization policies.12 The only modification to the status quo came in Article IV of the Articles of Confederation (the forerunner to the Constitution), which provided that the citizens of each state were given the same privileges and immunities as citizens of every other state. But each state retained its own naturalization and immigration laws and standards. This arrangement created a de facto briar patch of policies and practices that inhibited commerce and limited America’s potential role on the world stage. The problem was rectified at the Constitutional Convention in 1787. Article I, Section 8 of the new Constitution gave Congress the power “To establish an uniform Rule of Naturalization.”13
The noted nineteenth-century associate justice of the Supreme Court and constitutional scholar Joseph Story spoke eloquently of the need for congressional oversight and exclusive jurisdiction over immigration:
The power of naturalization is, with great propriety, confided to Congress, since, if left to the States, they might naturalize foreigners upon very different, and even upon opposite systems; and, as the citizens of all the States have common privileges in all, it would thus be in the power of any one State to defeat the wholesome policy of all the others in regard to this most important subject. Congress alone can have power to pass uniform laws, obligatory on all the States; and thus to adopt a system, which shall secure all of them against any dangerous results from the indiscriminate admission of foreigners to the right of citizenship upon their first landing on our shores. And, accordingly, this power is exclusive in Congress.14
The first effort to control immigration and naturalization came with the Naturalization Act of 1790, when Congress set the residency requirement for U.S. citizenship at two years. In 1795, the requirement was increased to five years. The Alien and Sedition Acts of 1798 were dramatic attempts by Congress, then controlled by the Federalist Party of John Adams and Alexander Hamilton, to address both a national security threat and a political challenge to the Federalists’ power.15 The first was the imminent threat of war with France and the second was the trend of new immigrants to ally with the Republican Party headed by Thomas Jefferson. Among the many things these acts did was criminalize criticism of the federal government and increase the time an immigrant had to live in the United States before becoming a citizen from five to fourteen years. They also provided for the deportation of aliens from “enemy” states and allowed the president to imprison enemy aliens during wartime.16
When Jefferson won the presidency and his party took control of both houses of Congress in 1800, the Alien and Sedition Acts were repealed. Congress also returned the residency requirement for U.S. citizenship to five years. Beyond these actions, no real effort was made by Congress to limit immigration in this country until 1875, when Congress passed the first immigration act that restricted entry of aliens to the United States.17 The act prohibited immigration by slaves, prostitutes, and Chinese “coolies.”18 Later laws imposed temporary or permanent restrictions on entry by Chinese emigrants and other groups.
Congressional legislation has repeatedly, over the last two centuries, added, modified, or removed the residency, gender, race, and age requirements to become a U.S. citizen. The Naturalization Act of 1855, for example, opened U.S. citizenship to immigrant women who married a citizen or
whose husbands became naturalized.19
More recently, in 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which gave immigration officers the authority to summarily deport an alien if the officer determines that the alien has engaged in fraud or misrepresentation, or that the alien does not possess valid documents.20 It also delegated to the attorney general—not to the Supreme Court—sole authority to naturalize individuals. Congress specifically stated in the IIRIRA that courts could no longer review an attorney general’s decision to remove an alien “on the basis of most criminal convictions.”21
Congress’s rationale for keeping naturalization an executive branch function is that deportation hearings do not determine whether an alien is guilty of any crime. By simply kicking someone out of our country, the federal government is not, in a legal sense, punishing that person.
Unfortunately, while recognizing in some cases Congress’s basic authority to write immigration law, a majority of justices on the Supreme Court have on several occasions used two constitutional provisions to insert the Court’s institutional nose under the immigration tent. The Court discovered that the equal protection and due process clauses in the Fifth22 and Fourteenth23 Amendments granted the judiciary all of the authority it will ever need to rewrite America’s immigration laws.
However, the Supreme Court has chosen in successive decisions to extend the premise of equal protection and due process to include equal access to social benefits as well. In fact, in Graham v. Richardson,24 a 1971 case, the Court said, “this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege.’” 25
This wasn’t always the case. The Court, particularly in the years leading up to World War I, recognized the importance of distinguishing between citizens and noncitizens in making and managing public policy. In 1915, in Heimv. McCall, the Supreme Court decided in favor of New York’s authority to show preference in hiring citizens for transit authority projects. Justice Joseph McKenna wrote:
The basic principle of the decision of the Court of Appeals was that the State is a recognized unit and those who are not citizens of it are not members of it. Thus recognized it is a body corporate and, like any other body corporate, it may enter into contracts and hold and dispose of property. In doing this, it acts through agencies of government. These agencies, when contracting for the State, or expending the State’s moneys, are trustees for the people of the State…. And it has hence decided that in the control of such agencies and the expenditure of such moneys it could prefer its own citizens to aliens without incurring the condemnation of the National or the state constitution.26
In Heim, in fact, the Court specifically rejected the argument that the Fourteenth Amendment precluded states from discriminating against noncitizens in the distribution of public benefits. “[I]t belongs to the State, as the guardian of its people, and having control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities.”27
In other words, the Supreme Court of 1915 deferred to the judgment of the state governments to determine how public funds should be distributed—exactly as the framers of the Constitution intended.
In 1927, in Ohio ex rel. v. Clarke Deckebach Auditor, the Court reinforced the Heim decision, specifically rejecting the equal protection argument advanced under the Fourteenth Amendment, and rejected the premise that the Court should exercise unfounded authority and write new law through its opinions.28 An 1815 treaty between the United States and Britain guaranteed that “the merchants and traders of each nation…shall enjoy the most complete protection and security for their commerce.”29 A merchant in Cincinnati, who was a resident alien and a subject of the British Empire, was denied a license to operate a pool hall because city ordinances required that such licenses be issued only to U.S. citizens. Justice Harlan Stone, in a unanimous decision, stated:
Some latitude must be allowed for the legislative appraisement of local conditions…and for the legislative choice of methods for controlling an apprehended evil. It was competent for the city to make such a choice, not shown to be irrational, by excluding from the conduct of business an entire class rather than its objectionable members selected by more empirical methods.30
But the Court, in a number of cases over the last four decades, has determined not only that aliens—even illegal aliens—are “persons” as defined in the Fifth and Fourteenth Amendments, but also that their status is increasingly indistinguishable from that of citizens. So while the Constitution gives to Congress the sole authority to determine how many immigrants may enter the country, how immigrants can become citizens of the United States, and whether those immigrants should be able to avail themselves of the benefits of U.S. citizenship, the Court has chosen on several occasions to ignore the express direction of the founders and usurp that authority for itself.
The first of these cases was Graham v. Richardson, which involved the rules established by two states for aliens to receive welfare benefits.31 In the 1960s, Pennsylvania and Arizona required that permanent, resident aliens in those states meet minimum residency requirements in order to receive certain welfare benefits. Arizona, for example, required that to qualify for welfare a resident alien must have lived in the state for fifteen years.32 State officials were concerned that, without minimum residency requirements, aliens would move from state to state depending on the benefits they could receive.33
In 1969, Carmen Richardson, a sixty-four-year-old Mexican native who had legally emigrated to Arizona thirteen years before, became disabled. She filed for welfare benefits but was turned down because she did not meet the state’s fifteen-year residency requirement.34 Richardson subsequently filed suit in federal court in Arizona, claiming that the residency requirement violated the equal protection clause of the Fourteenth Amendment and her constitutionally protected right to travel. Richardson’s case was joined with other cases in Arizona and Pennsylvania and heard by the U.S. Supreme Court after lower courts accepted her arguments and ruled in her favor.35
In rejecting the established principle that states have a right and a responsibility to husband their limited resources for their citizens and long-standing legal residents, Justice Harry Blackmun wrote:
We agree with the three-judge court in the Pennsylvania case that the justification of limiting expenses is particularly inappropriate and unreasonable when the discriminated class consists of aliens. Aliens like citizens pay taxes and may be called into the armed forces…aliens may live within a state for many years, work in the state and contribute to the economic growth of the state…. There can be no “special public interest” in tax revenues to which aliens have contributed on an equal basis with the residents of the state…. Accordingly, we hold that a state statute that denies welfare benefits to resident aliens and one that denies them to aliens who have not resided in the United States for a specified number of years violate the Equal Protection Clause.36
Blackmun also invoked a test for courts to use to decide whether a citizenship requirement for benefits from a state or federal agency is permissible. “The Court’s decisions have established that classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.”37 In other words, lawmakers could only use noncitizenship if they could demonstrate a compelling government interest in doing so—a hurdle that would be nearly impossible to overcome.
The real question the Court should have addressed—and the one that would have profound constitutional implications—is: Who gets to determine whether aliens are eligible for certain benefits? Who sets policy? Clearly, if there is a desire to create a national standard for the eligibility of federal programs, Congress should make that decision. If the program is exclusive to a particular state, the relevant state government should make that decision. The Court simply abrogated
the explicit and inherent authority of those elected legislative bodies and imposed its own preference.
The Court also found that the Civil Rights Act of 1866, which guaranteed equal rights to every citizen in every state, included a protected right to travel among the states.38 The Court ruled that creating residency requirements for aliens would inhibit their right to travel. Again, the Court simply created a new constitutional right—the right to travel—and then extended that “right” to aliens.
In 1976, the Supreme Court ruled in the case Hampton v. Mow Sun Wong that citizenship was an unconstitutional requisite to holding a government job.39 In 1970, five resident alien civil service employees were dismissed from their jobs in the Post Office,40 the Health, Education, and Welfare Department,41 and other federal agencies because it was discovered that they were not U.S. citizens as required by Civil Service Commission regulations. The five sued the commission in federal court.
The Supreme Court ruled unanimously that the citizenship requirement violated the due process and equal protection clauses and legal aliens’ right to liberty. Justice John Paul Stevens wrote:
The rule enforced by the Commission has its impact on an identifiable class of persons who, entirely apart from the rule itself, are already subject to disadvantages not shared by the remainder of the community. Aliens are not entitled to vote and, as alleged in the complaint, are often handicapped by a lack of familiarity with our language and customs. The added disadvantage resulting from the enforcement of the rule—ineligibility for employment in a major sector of the economy—is of sufficient significance to be characterized as a deprivation of an interest in liberty…. By reason of the Fifth Amendment, such a deprivation must be accompanied by due process…It follows that some judicial scrutiny of the deprivation is mandated by the Constitution.42
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