Posted on 09/22/2004 10:59:54 AM PDT by Iron Eagle
In the absence of that proof, no state should be mandated to educate an individual who cannot prove lawful residency -- either within the district or within the Country.
The state simply can't ask about your country of origin. It can certainly ask if you reside IN the state or IN a district. It can ask if you live IN the country. What it can't do is make a distinction based on your country of origin. Only congress is empowered to do that or to empower as state to do that. So far, that hasn't happened.
The distinction is clear and irrelevant to this discussion. Keep in mind all kinds of clever schemes have been tried to circumvent the constitution. There is what's called discrimination on its face and discrimination as applied. Discrimination being the unlawful distiction we've been discussing. There is a plate full of cases that deal with residency or what's called prividges and immunities. Anything from milk production to awarding state or local contracts. All have failed in the same way your idea fails the test.
You use just enough tidbits to make one think you are a lawyer. Perhaps you are. I hope not.
If there is one thing about which we are not discussing, its discrimination -- per se or otherwise. Discrimination -- as the term is properly applied in a legal context --plays no role in this discussion at all. Now -- if states were only requiring proof of lawful residency from certain groups with immutable characteristics, then we would be discussing discrimination.
Mine is not a "scheme" to "circumvent" the Constitution. Frankly, the Constitution has already been circumvented by the weak and shameful reasoning of Plyler v. Dough. I don't dispute what the law is, I just agree with the writer that Plyler is ripe to be overturned, and is based on faulty principles. I also agree that the only way to address the problem is through the Court itself.
I'm happy you do know that discrimination is being used as a term of art. However, for this hypo, the fact that the state is requiring proof of lawful residency in this country IS in fact the discrimation. Immigration status enjoys a higher level of judicial scrutiny given its mention in the constitution. To those that feel immigration should be addressed by the states should direct their words and their efforts at congress, and ask they give them that power, rather than hope in vain that the court is going to overturn Plyler v. Doe.
What irony. Circumvention of the Constitution is best accomplished when one finds one's self using the artificially created analysis doctrines the Court uses to legislate. The doctrines are, nonetheless, real.
You seem to be arguing not about discrimination, though, but rather that the Federal preemption doctrine precludes states from getting into determining immigration status. I agree they cannot do that. I remain unconvinced that requiring proof of residency rises to the level of discrimination, or that it even triggers the lowest level of judicial scrutiny.
As for the suggestion to write one's Congressman, that will not help with Plyler. As you should know, Plyler cannot be undone by an act of Congress. It will take a Constitutional Amendment or, for Congress to overturn a prior holding.
That's never a safe bet. Indeed, the principle of stare decisis makes it hard to fix bad law. Having said that, I think the point of the author is that the Court now has different votes than it once had, and it has advantage of hindsight.
Right now -- today -- there is no other feasible way to stop the illegal aliens from using public schools than to overturn Plyler.
Well, techincally it's not a preemption issue, but it operates the same way. It's an equal protection issue as the courts have viewed it.
As for the suggestion to write one's Congressman, that will not help with Plyler. As you should know, Plyler cannot be undone by an act of Congress. It will take a Constitutional Amendment or, for Congress to overturn a prior holding.
It has been held that Congress does indeed have the power to allow states to make these distinctions. Just as they do with the commerce clause. Real the cases. It can be undone.
"My sentiment is that people should not be allowed to come here illegally to have children just so that those children may automatically be United States Citizens."
We are in agreement--like most Americans. Our borders are a mess and the illegal problem is hugh. If we stopped inviting them over here by giving them freebies (hospital, classroom, voting, employment) and increased the budget tenfold to police our borders, this problem would disappear in a two weeks.
The reason it won't happen without massive political struggle is lobbyists don't want it, the illegals are coordinated in their activism, and the politicians all consider hispanic backlash something to be avoided at all costs.
Americans like you and I fume on forums like this, but until an illegal breaks into our home, sells drugs to our kids, or takes our job, we don't get active. The duty of every citizen is to keep his or her representative voice in our government in check and true. Our opponents, so far, have done it better than us.
Yes, people "fume" in forums. That anger is sometimes misinterpreted when words aren't written just right. I'm glad you see where I was coming from. I figured you and I were in agreement. Just that the other person's racist statement got in the way.
I like to see activists like you. I'm old and not in the best of health. All I can do is "fume". Consequently, you fight for me, too. Thank you.
Pleasure to meet you, JudyB1938. I hope your health improves, and in the meantime I'll fume enough for both of us.
You might pay attention to "Salem's" posts elsewhere. I think you'd like Mike. We've been friends since I went online in 1998. I just have a feeling you two would like each other, too. He's also quite the activist. Right now his main focus is the Israeli situation.
If you'd like to check out his website, it's ...
http://www.salemthesoldier.us/
He's got so many goodies that it's hard to find them all sometimes. Just gotta keep clicking on the various links. :0)
1) Plyler is a decision based on an extension of the equal protection doctrine. I agree with that.
2) Your argument about who has the right to decide origin, however, stems from the Federal Preemption doctrine. That is, the Congress has made that the sole province of the Federal Government. (And yes, that determination of status could be changed by Congress.) Under Federal preemption doctrine, a state cannot enter that sphere of the law because in essence, it is solely occupied by the Federal Government.
3) Let's get to the heart of the confusion here. You insist, rather steadfastly, that a state would not be able to check immigration status because that is a determination of "origin," which it cannot do. I have disagreed. As you recall, I have said that there is a difference between seeking proof of origin, and making a determination about legal status.
As you are probably aware, a number of states, under state law, do require proof of citizenship or legal residency for certain benefits. For instance in Virginia one cannot get a driver's license from the State without -- you guessed it -- PROOF of U.S. Citizenship or lawful residency. The reason for this is simple -- Virginia is not determining citizenship, it is requiring proof thereof before permitting a benefit. Just one example.
Well, technically, the Constitution has made it the sole province of the federal government, and I believe it has been interpreted as to allow that power to be delegated to the states.
As you are probably aware, a number of states, under state law, do require proof of citizenship or legal residency for certain benefits. For instance in Virginia one cannot get a driver's license from the State without -- you guessed it -- PROOF of U.S. Citizenship or lawful residency. The reason for this is simple -- Virginia is not determining citizenship, it is requiring proof thereof before permitting a benefit. Just one example.
Yes, I am well aware of Virginia's "Legal Presence" law. You certainly can't point to the existence of a state law that's only been in effect 8 months as proof that what they are doing is constitutional. I maintain that unless they have such authority from congress, if such a law is challenged it will be struck down by a federal court. You sound to be too intelligent a person to be putting all your eggs in this basket.
More on Virginia's Legal Presence law, I will give you this - it is rather amazing that there are no reports of litigation involving this law. Normally the ACLU and the usual bunch sue before a law like this even takes effect. Of course, I'm guessing on something to happen after the election.
The article does not get to heavy into legal efforts to attack the policy of certain Virginia colleges to check immigration status. But, it does mention that such a class-action suit has been commenced. Interestingly, the boy in question was not permitted to join the suit, because a Federal judge had deemed him "unlawfully present" in the United States. He was rejected by some colleges for admission based on his "illegal" status, while others such as George Mason permitted him in without checking his status.
The young man is going to go to Virginia Tech. He is now fighting to get in-state status.
I will be keeping an eye out for the progress of this litigation.
By the way -- here is a listing of other states that require proof of legal status to obtain a license.
The following states all have requirements that an applicant must be a legal resident of the U.S. to get a license or ID: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, New Jersey, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Virginia, West Virginia, and Wyoming.
If I ever get some more free time, I will look to see if and when they have been challenged. It seems to me, under the Plyler holding and its extension of "equal protection" these state's should not be able to enact and enforce these laws. A challenge to these laws may actually lead to a re-examination that could effect the holding of Plyler. Maybe!
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