Get Rid of Plyler v. Doe

The DOJ is suing Minnesota for its blatantly illegal policy of affording illegals privileged admissions status to higher education institutions and programs (see, filed complaint). The applicable statute (8 U.S.C. § 1623(a)) was passed by the brand new GOP Congress in 1996 and signed by Bill Clinton back when Democrats were not as enthused about illegal immigration as they are now.

That 1996 legislation was a belated, small pushback against the lasting impact of Plyler v. Doe, 457 U.S. 202 (1982), in which Justice Brennan authored the holding in a 5-4 decision that the 14th Amendment forbade Texas from allowing counties to exclude children of illegals from public schools. Both the majority and the dissent seemed to agree that the real rationale was that the other two branches had dropped the ball on border control, that the illegals now present probably will never be made to leave, and so as a matter of public policy it would be better for their kids to read and to speak English. In his dissent, Chief Justice Burger correctly pointed out that this was an instance of the Court doing policy work out of a belief in its role to fix the supposed performance defects of the elected branches rather than simply applying the actual law. It is because of Plyler that state and county welfare agencies, schools, motor vehicle administrations and even police are barred from directly inquiring about citizenship status.

Burger offered an optimistic but wrong consolation: “In a sense, the Court's opinion rests on such a unique confluence of theories and rationales that it will likely stand for little beyond the results in these particular cases." Would that it were true.

The dissent made the important point that while the 14^th Amendment bars the designation of a “suspect class” when such designation could be used to deny a fundamental right, it does not bar functional categorizations for disparate treatment (e.g., the mentally ill, residents of different jurisdictions, targeted benefit programs). Brennan essentially smuggled in public education as a “fundamental” right. And because that "fundamental" status is difficult to distinguish from the equally compelling need for housing, food, or medical care, why not convert hotels and military bases and create virtual entitlements for illegals?

Trump has challenged the application of the 14^th Amendment to “birthright citizenship” in a case currently before SCOTUS that he will probably lose. What we really need is broader, concerted legislative and judicial effort to erase Plyler to clear the way for rational, fair handling of illegal status without entitlement, delay, unnecessary procedural complications, or excessive burdens on federal, state and local public finances.