Wilson knew that 187 would (a) get HIM re-elected and (b) never stand up to the most cursory judicial review, saving him any real political heat over having to enforce it. The initiative's drafters didn't help any by failing to include a severability clause. If one element was thrown out, the entire thing would get tossed.That's the spin of the left, but it doesn't hold up.
All California was trying to do was require proof of legal residence before granting State benefits to applicants. Some of these are benefits that most States don't offer at all, so there is no federal compulsion.
Further, States may, if they choose, require legal residence before issuing drivers' licenses. Is that also in violation of federal authority?
California passed a three-strikes law... if one of the strikes was a federal conviction, it still counts. Is that an abrogation of a federal prerogative?
Despite the propaganda, what did Prop #187 actually attempt to do? Did it really deny medical benefits, welfare, and education to Illegals?
No, it merely stated that California wasn't going to pick up the tab. It said nothing about private or federal entities providing those benefits.
If Prop #187 was a sure-fire judicial loser, why did Gray Davis make the unprecedented move not to pursue the appeals?
Mariana Pfaelzer is a judicial radical... there was no guarantee that her decision was going to be upheld, and plenty of doubt. That's one reason why she took so long to finally rule on the case in March of 1998, after issuing a restraining order against its implementation in 1994. If it was a slam-dunk, she'd have ruled far more expeditiously. By not doing so, she allowed the issue of whether or not to appeal Prop #187 to become part of the 1998 California Gubernatorial campaign.
Gray Davis won, despite lying that he would respect the will of the voters of California on #187. The only dilemma was how to execute the deception. Davis, in full-court pander mode, couldn't risk allowing the appeal to continue, so he let the case be arbitrated... itself a legally dubious decision.
If Prop #187 was really as dead as a Constitutional doornail, why didn't Davis just say so and go through the motions until it was killed by the U.S. Supreme Court? Precisely because he knew it wasn't.
The only sketchy aspect of Prop #187 was the provision not to use California State funds to educate Illegal Alien children. This would have required the SCOTUS to overturn Plyler vs. Doe (1982), a 5-4 activist decision of the Burger Court which had placed that requirement to educate Illegal children on the States.
However, Justice Brennan, in his majority opinion, did not cite the naturalization clause of Article I, Section 8 of the US Constitution, as would be the case if the matter hinged on a dispute over a State infringing on duly empowered federal authority. Instead, he based his ruling on an expansive reading of the Self-incrimination Clause of the 5th Amendment and the Equal Protection Clause of the 14th...
Held: A Texas statute which withholds from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment.
LINKIt's unlikely that the Supreme Court of the late 90s would have issued such a ruling, leaving the very real question of whether not they would overturn precedent, void all or parts of Plyler, and uphold Proposition #187.
How would the Supreme Court have ruled? No one knows, not you, not me, not Gray Davis, and not Pete Wilson. Despite the Clinton appointees, the Rehnquist Court of the 1990s was certainly more conservative than the Burger Court of 1982. Rehnquist, Scalia, Thomas, and O'Connor (she voted against Plyler) would certainly have voted to overturn. Stevens, Souter, Ginsburg, and probably Breyer would have voted to uphold it. Center-right Reagan appointee Anthony Kennedy and would have been the swing vote.
It's simply revisionist to suggest that the judicial stillbirth and an eventual ruling of unconstitutionality on Prop #187 was a fait accompli.
