BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SB 396 (De León)
As Amended June 5, 2014
Hearing Date: August 20, 2014
Fiscal: No
Urgency: No
RD
PURSUANT TO SENATE RULE 29.10
SUBJECT
Public Services
DESCRIPTION
This bill would repeal various statutes implemented by
Proposition 187, which have since been held unconstitutional on
the basis of federal preemption and rendered unenforceable by
way of a permanent injunction in federal court.
BACKGROUND
On November 8, 1994, California voters approved Proposition 187,
an anti-illegal immigrant initiative known as the "Save Our
State" initiative. As stated in that election's ballot
pamphlet, proponents sought to end "the ILLEGAL ALIEN invasion"
and believed that "[w]elfare, medical and educational benefits
are the magnets that draw these ILLEGAL ALIENS across our
borders." ((Ballot Pamp., Gen. Elec. (Nov. 8, 1994) argument in
favor of Prop. 187, p. 54) (hereinafter Pamphlet).) The stated
purpose of Proposition 187, as reflected in the findings and
declarations in Section 1 of the initiative, was to "provide for
cooperation between [the] agencies of state and local government
with the federal government, and to establish a system of
required notification by and between such agencies to prevent
illegal aliens in the United States from receiving benefits or
public services in the State of California." (Pamphlet, supra,
text of Prop. 187, Sec. 1, p. 91.) The initiative prohibited
any person from receiving public social services or public
(more)
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health care services, or from being admitted or permitted to
attend a public elementary, secondary, or postsecondary school,
until he or she has been verified as a U.S. citizen, permanent
resident, or an otherwise lawfully present alien. The
initiative also included various reporting requirements with
respect to persons suspected of being present in the U.S. in
violation of federal immigration laws.
Immediately after the election, several actions challenging the
Proposition's constitutionality were initiated in the courts. A
District Court judge for the Central District of California
issued a preliminary injunction, which was subsequently upheld
by the Ninth Circuit Court of Appeals, and the various actions
were later consolidated into one case. (See Gregorio T. v.
Wilson (9th Circ. 1995) 59 F.3d 1002.) Later that year, in
League of United Latin Am. Citizens (LULAC) v. Wilson (1995) 908
F. Supp. 755 the District Court considered the consolidated
action and found the various classification, notification and
cooperation/reporting provisions of the Proposition to be
preempted as a matter of federal law, as "Congress has exercised
its power over immigration in the Immigration and Naturalization
Act (INA)" which "is a comprehensive regulatory scheme that
regulates the authorized entry, length of stay, residence status
and deportation of aliens" and specifically delegates
enforcement duties to the Immigration and Naturalization
Service. (Id. at 768-769.) As such, "[b]ecause the federal
government bears the exclusive responsibility for immigration
matters," the court found that "the states can neither add to
nor take from the conditions lawfully imposed by Congress upon
admission, naturalization and residence of aliens in the United
States or the several states." (Id. 769.) At the same time, the
court allowed for severability of the non-"classification,
notification, and cooperation/reporting" provisions and upheld
the section prohibiting the admittance of undocumented aliens
into postsecondary schools.
Then, in 1996, President Bill Clinton signed into law the
Personal Responsibility and Work Opportunity Reconciliation Act
(PRA) and the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA). The PRA restricted and defined the
eligibility of certain non-citizens for federal, state, and
local benefits and service, whereas the IIRIRA further
supplemented the federal immigration regulatory scheme. As a
result, on March 13, 1998, the District Court granted
reconsideration in LULAC (D.Cal. Mar. 13, 1998, CV 94-7569 MRP)
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1998 U.S. Dist. LEXIS 3418 and held that the majority of the
Proposition is unconstitutional due to federal preemption. The
court also issued a permanent injunction against enforcement of
those provisions. (LULAC (D.Cal. Mar. 13, 1998, CV 94-7569 MRP)
1998 U.S. Dist. LEXIS 3371.) Finally, in July 1999, a
court-approved mediation ended years of battle over the
proposition's validity. (See Nieves, California Calls Off
Effort to Carry Out Immigrant Measure, N.Y. Times (Jul. 30,
1999)
(as of Aug. 19, 2014).
Accordingly, this bill seeks to repeal the sections of
Proposition 187 that have been deemed unconstitutional and
unenforceable by the federal courts.
CHANGES TO EXISTING LAW
Existing law , as enacted by Proposition 187:
Prohibits the provision of specified services (including any
public health, education, and social services) to any person
who is not a citizen of the United States, an alien lawfully
admitted as a permanent resident, or a person otherwise
authorized under federal law to be present in the U.S., as
specified. (Ed. Code Secs. 48215, 66010.8; Health & Saf. Code
Sec. 130; and Welf. & Inst. Code Sec. 10001.5.)
Requires every law enforcement agency in the state to fully
cooperate with the U.S. Immigration and Naturalization Service
regarding any person who is arrested if he or she is suspected
of being present in the U.S. in violation of federal
immigration laws, as specified. (Pen. Code Sec. 834b.)
Requires the transmittal and maintenance of any reports by the
state, city, or a county or other legally authorized local
governmental entity with jurisdictional boundaries of the
presence of a person who is suspected of being present in the
U.S. in violation of federal immigration laws, as specified.
(Gov. Code Sec. 53069.65.)
Existing law , the California Constitution, provides that the
Legislature may amend or repeal referendum statutes. It may
amend or repeal an initiative statute by another statute that
becomes effective only when approved by the electors unless the
initiative statute permits amendment or repeal without their
approval. (Cal. Const., art. II, Sec. 10(c).)
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Existing case law holds that the federal government possesses
the exclusive power to regulate immigration. Such power derives
from the Constitution's grant to the federal government of the
power to establish a uniform Rule of Naturalization and to
regulate Commerce with foreign Nations. (League of United Latin
Am. Citizens (LULAC) v. Wilson (1995) 908 F. Supp. 755, 768; see
also U.S. Const., art. I, Sec. 8, cl. 3-4.)
Existing case law holds that Proposition 187's "classification,
notification and cooperation/reporting provisions in sections 4
through 9 of the initiative, taken together, constitute a
regulatory scheme (1) to detect persons present in California in
violation of state-created categories of lawful immigration
status; (2) to notify state and federal officials of their
purportedly unlawful status; and (3) to effect their removal
from the United States. These provisions create an impermissible
state scheme to regulate immigration and are preempted . . . ."
(LULAC, supra, 786-787; in a subsequent proceeding, LULAC
(D.Cal. Mar. 13, 1998, CV 94-7569 MRP) 1998 U.S. Dist. LEXIS
3418, 44-48, the District Court deemed Section 1 inoperable and
Sections 4 through 9 unenforceable, in their entirety, based
upon federal preemption.<1> )
Existing case law , Plyler v. Doe (1982) 457 U.S. 202, holds that
the Equal Protection Clause of the Fourteenth Amendment of the
U.S. Constitution prohibits states from excluding undocumented
alien children from public schools. Existing case law, LULAC v.
Wilson, provides that Section 7 of Proposition 187, "Exclusion
of Illegal Aliens From Public Elementary and Secondary Schools,"
"in its entirety conflicts with and is therefore preempted by
federal law." (LULAC, 908 F.3d at 774.)
---------------------------
<1> Section 1 of Proposition 187 declared the Proposition's
intent to require cooperation between state and federal
government, notification, and denial of benefits and services to
illegal aliens. "Because the Proposition no longer contains
provisions relating to this declaration, section 1 is not
separately enforceable. Therefore, section 1 cannot be upheld."
LULAC (D.Cal. Mar. 13, 1998, CV 94-7569 MRP) 1998 U.S. Dist.
LEXIS 341844. Section 4 is codified at Pen. Code Sec. 834b;
Section 5 is codified at Welf. & Inst. Code Sec. 10001.5;
Section 6 is codified at Health & Saf. Code Sec. 130. Section 7
is codified at Ed. Code Sec. 48215; Section 8 is codified at Ed.
Code Sec.66010.8; and Section 9 is codified at Gov. Code Sec.
53069.65.
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This bill would strike the code sections added by Sections 4
through 9 of Proposition 187.
COMMENT
1. Stated need for the bill
According to the author:
In 1994, exactly twenty years ago, the voters of California
approved Proposition 187, now considered one of the most
mean-spirited measures in California's ballot initiative
history. With 59 percent of voters in favor of the initiative
and 41 percent against it, Proposition 187 was a pernicious
and unabashed attempt to target and scapegoat immigrants for
the economic recession in the mid 1990's. At the time,
California had an estimated 1.3 million undocumented
immigrants, which included more than 300,000 undocumented
children.
Proposition 187 would have barred the children of undocumented
immigrants from attending public schools and would have
required teachers, doctors, social workers, and law
enforcement personnel to report and turn in any suspected
undocumented immigrant to federal authorities. In short, it
turned every teacher, doctor, social worker, and local police
officer into an immigration agent for the federal government.
[ . . . ]
The United States District Court for the Central District of
California held that certain provisions of Proposition 187
were unconstitutional on the basis that those provisions were
preempted by federal law, including the then-recent reform of
the welfare system and immigration law. The court issued a
permanent injunction rendering those provisions of Proposition
187 unenforceable. [ . . . ] Nevertheless, despite clear
findings that Proposition 187 is unconstitutional, its
language remains on the books. Undoubtedly, the state has made
tremendous progress in recent years by enacting laws that
promote the safety and livelihood of immigrant families and
that recognize undocumented immigrants as valued members of
society. And so, after 20 years, it is fitting that California
expressly acknowledge the detrimental impact of the
discriminatory and xenophobic Proposition 187 by removing its
stain from the state's statutes. [ . . . ]
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In support of the bill, the American Civil Liberties Union
(ACLU) writes:
The ACLU's opposition to this statute dates back over 20
years. In 1994, the ACLU of California opposed Proposition
187, which was ultimately passed by the voters. However,
portions were struck down in federal court as
unconstitutional, and the State agreed not to enforce
others in a settlement. Unfortunately, there are provisions
that remain on the books that are therefore enforceable,
but their continued presence causes confusion and harmful
outcomes for immigrant Californians.
For example, Penal Code 834(b), which required law
enforcement to inquire into the immigration status of
individuals they arrested, remains on the books today,
leading to confusion and violations of civil liberties. The
ACLU has seen this provision referenced in jail policies
and legal memos pertaining to law enforcement interactions
with immigrants. When this statute is wrongly enforced, the
rights of immigrants are violated.
2. Bill repeals only those Proposition 187 statutes that have
been invalidated and deemed unenforceable
Under existing law, California's Constitution only authorizes
the Legislature to amend or repeal initiative statutes by way of
another statute that becomes effective only when approved by the
electors -unless the initiative statute permits amendment or
repeal without their approval. (Cal. Const., art. II, Sec. 10,
subd. (c).) This bill seeks to repeal several state statutes
implemented upon voter approval of Proposition 187, which
generally prohibited the provision of various benefits to
undocumented aliens. That proposition did not authorize the
Legislature to amend or repeal its provisions without voter
approval.
While the Legislature only retains limited ability to repeal or
amend laws approved by the electorate, the Supremacy Clause of
the federal constitution establishes the U.S. Constitution,
federal statutes, and U.S. treaties as "the supreme law of the
land" and provides that these are the highest form of law in the
United States, and mandates courts to follow federal law when a
conflict arises between federal law and either the state
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constitution or law of any state. (U.S. Const., art. VI, cl. 2;
this is also known as federal preemption.) In other words, any
laws passed by the state, whether by way of the legislative
process or ballot, must not violate the federal constitution,
conflict with, or otherwise interfere with an area of law that
federal law has already occupied.
Upon passage of Proposition 187, controversy arose as to the
constitutionality of the resulting statutes. Pursuant to the
U.S. Constitution, which grants the federal government the power
to establish a uniform Rule of Nationalization and regulate
commerce with foreign nations, the United States District Court
for the Central District of California held that the federal
government possesses the exclusive power to regulate
immigration. (U.S. Const., art. I, Sec. 8, clauses 3 and 4; see
also League of United Latin American Citizens (LULAC) v. Wilson
(1995) 908 F.Supp. 755, 768.) Because the federal government
bears the exclusive responsibility for immigration matters, the
states "can neither add to nor take from the conditions lawfully
imposed by Congress upon admission, naturalization and residence
of aliens in the United States or the several states." (Id. at
769, citing Takahashi v. Fish & Game Commission (1948) 334 U.S.
410, 419.) Ultimately, the District Court in LULAC (D.Cal. Mar.
13, 1998, CV 94-7569 MRP) 1998 U.S. Dist. LEXIS 3418, 44-45 held
that Section 1 (setting forth the purpose of the Proposition in
findings and declarations) and Sections 4 through 9 (prohibiting
the provision of specified services and pertaining to reporting
of persons suspected of being present in the U.S. in violation
of federal law) are preempted under federal law or otherwise
unconstitutional under prior U.S. Supreme Court precedent
regarding the 14th Amendment right of undocumented aliens to
elementary or secondary education. The court found:
Congress enacted the PRA [the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996], a comprehensive
statutory scheme regulating alien eligibility for public
benefits. The PRA states that it is the immigration policy of
the United States to restrict alien access to substantially
all public benefits. Further, the PRA ousts state power to
legislate in the area of public benefits for aliens. When
President Clinton signed the PRA, he effectively ended any
further debate about what the states could do in this field.
As the Court pointed out in its prior Opinion, California is
powerless to enact its own legislative scheme to regulate
immigration. It is likewise powerless to enact its own
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legislative scheme to regulate alien access to public
benefits. It can do what the PRA permits, and nothing more.
Federal power in these areas was always exclusive and the PRA
only serves to reinforce the Court's prior conclusion that
substantially all of the provisions of Proposition 187 are
preempted under De Canas v. Bica. Only sections 2, 3 and 10
are enforceable. (Id., internal footnote omitted.)
Despite the fact that the Proposition has never been fully
implemented due to the federal court decision and resulting
injunction, the author argues that the continued presence of
these provisions within California codes has had a "damaging and
lasting impact on the immigrant communities because it further
stigmatized an already vulnerable population" noting that even
today, "the immigrant population fears interacting with
government officials and, as a result, is often hesitant to
become civically engaged and cooperate with the police." The
author also notes that "Proposition 187 [has] served as the
unfortunate precursor to the draconian anti-immigrant laws
recently adopted in Arizona (SB 1070) and Alabama (HB 56) that,
like Proposition 187, encourage racial profiling and targeting
undocumented immigrants."
Notably, to address these issues, this bill would only repeal
those provisions of Proposition 187 that have been found to be
unconstitutional and unenforceable. Consistent with the
California Constitution, it does not modify or repeal the
provisions that the LULAC court upheld. While California law
generally requires voter approval to amend or repeal laws
enacted by way of proposition, as noted above, the courts also
have the authority to amend or abrogate laws that are in
violation of the Constitution. Accordingly, the fact that
Proposition 187 limited benefits that could be provided to
undocumented aliens by way of a popular vote does not exempt the
resulting statutory provision from constitutional scrutiny or
justify a more deferential standard of review from the court.
Arguably, with the federal court in LULAC having already
rendered unenforceable the provisions of Proposition 187 that
are proposed to be repealed by this bill, SB 396 would not
impermissibly repeal or amend the initiative; rather, it would
merely update California statutes to accurately reflect current
law.
Support : American Civil Liberties Union of California;
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California Immigrant Policy Center; City of Los Angeles Mayor,
Eric Garcetti; Coalition for Humane Immigrant Rights of Los
Angeles; Mexican American Legal Defense and Education Fund
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : SB 1306 (Leno, Ch. 82, Stats. 2014)
reconciles existing statutory language with case law by, among
other things, repealing a provision in the Family Code that
provides that "only marriage between a man and woman is valid or
recognized in California." While that provision was enacted by
the voters in Proposition 22 in 2000, the California Supreme
Court found it to violate constitutional rights to equal
protection, due process, and privacy under the state
constitution.
Prior Vote :
Assembly Floor (Ayes 63, Noes 1)
Assembly Judiciary Committee (Ayes 8, Noes 0)
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