Who Gets to Decide?

October 30, 1994|By GEORGE F. WILL

Washington -- Justice William Brennan, asked if he regretted any decision he had rendered during his 34 years on the Supreme Court, replied, ''Hell no, I never thought that I was wrong.'' And he always thought he had a right to impose social policies he considered right. Today's national debate about California's Proposition 187, which would deny free public education and some other non-emergency public services to illegal immigrants, arises from damage done by Brennan's, and the court's, hubris.

In 1982 the court narrowly (5-4) overturned a Texas statute denying free public education to illegal immigrants. The majority opinion, written by Brennan and joined by Justices Marshall, Powell, Blackmun and Stevens, extended the 14th Amendment's guarantee of ''equal protection of the laws'' to people seeking entitlements from a state in which their presence was illegal.

Brennan argued that Texas' statute was unfair because illegal immigrant minors are not responsible for where they are, that the law was bad social policy because it might produce an underclass, and that therefore the law was unconstitutional. This is the familiar non sequitur by which imperial judges turn courts into legislatures: Whatever the judges deem unfair or unwise must be unconstitutional.

Chief Justice Burger, dissenting and joined by Justices White, Rehnquist and O'Connor, noted that ''the court makes no attempt to disguise the fact that it is acting to make up for Congress' lack of 'effective leadership' '' regarding immigration. The court, he said, was yet again attempting ''speedy and wholesale formulation of 'remedies' for the failures -- or simply the laggard pace -- of the political processes of our system of government.''

By 1982 Congress had made its thinking clear through laws barring illegal aliens from Supplemental Security Income and Aid to Families with Dependent Children. In 1986, Congress did the same regarding non-emergency Medicaid services.

In 1990 Congress created ''Temporary Protected Status'' for legal or illegal aliens unable to return home because of circumstances such as civil disorder. Congress, doing something like what Proposition 187 would do, said people with this status are ineligible for most federal benefits. And this year, in providing disaster relief for California, Congress excluded illegal aliens from almost all benefits.

Critics of Proposition 187, which is designed to force the Supreme Court to reconsider its 1982 usurpation regarding policy toward illegal immigrants, seem scandalized that Californians are trying to reclaim a right of self-determination.

Critics who denounce Proposition 187 as ''immigrant bashing'' miss a point that evidently is not missed by the approximately 50 percent of California's Hispanics who support it: Proposition 187 concerns not what national immigration policy should be, but what state policy should be regarding violators of whatever the national law is.

Critics of Proposition 187 say, correctly, that government by initiative undermines representative government, under which the people do not decide issues, they decide who shall decide. However, many critics of Proposition 187 are unoffended by another subvention of representative government, judicial policy-making. There probably would be no Proposition 187 if elected officials, in Washington and Sacramento, had not been corrupted by the culture of judicial activism and been delighted, as the political class often is, to allow a court to take custody of an inconvenient problem.

When Brennan discovered a new sweep for the 14th Amendment, the amendment was 114 years old. When it was ratified, and for many decades thereafter, the nation had essentially open borders. What the nation did not have was a welfare state, the operation of which becomes particularly problematic when courts blithely legislate policies that expand entitlements to public resources that are finite.

Principles of federalism and popular government combine to justify Californians' right to decide how to allocate their increasingly scarce resources. Nevertheless, critics say Proposition 187 is unconstitutional. Proponents say: Perhaps, but perhaps only until the Supreme Court is forced to rethink its 1982 ruling that removed an important policy from the purview of state government.

Only one of the five majority justices from 1982, Mr. Stevens, remains. Two of the four dissenters, Mr. Rehnquist and Ms. O'Connor remain. If joined by Justices Thomas, Scalia and one other, 1982's judicial fiat will be overturned and the issue restored to popular sovereignty.

''The justices,'' wrote Brennan of his colleagues, ''are certainly aware that we are not final because we are infallible; we know that we are infallible because we are final.'' By passing Proposition 187, Californians can have a say about whose voices are final in a democracy.

George F. Will is a syndicated columnist.

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