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Immigration decision: Is U.S. on the rise, or diminished? Guest commentary

Los Angeles Daily News, May 14, 2015

Once again, the fate of an important national immigration policy hinges on Texas. Thirty-three years ago it was a Texas lawsuit that decided whether undocumented children would be allowed to attend public schools. The answer then was “yes.”

This summer an appellate court will decide upon the legality of a Texas judge’s injunction which, if upheld, would prevent President Obama from deferring deportation for millions of undocumented immigrants.

In the intervening years, the political landscape has shifted. And not in a good way.

In 1982 the Supreme Court held in Plyler v. Doe that Texas violated equal protection by enacting a statute prohibiting undocumented children from attending public schools. The ruling was passed by the narrowest of margins, 5-4. Justices in the majority rejected Texas’ argument that educating undocumented children would cause undue economic burden on the state.

The opinions of the justices reflected the humanistic values of that era. Children were innocents. They would not be punished for the actions of their parents.

In his new book “Immigration Outside the Law,” UCLA law professor Hiroshi Motomura provides a peek into that world. He quotes from The New York Times editorial page, which noted then, “any other result would have been a national disgrace. It was intolerable that a state so wealthy and so willing to wink at undocumented workers should evade the duty — and ignore the need — to educate all its children.”

Today the question being decided is whether the government can grant work permits and temporary relief from deportation to the undocumented parents of children born in the United States.

So far the Texas court has shown no inclination to acknowledge an obligation to assist the millions of parents of U.S. citizens who could be deported. The Texas judge who stayed President Obama’s executive order did not ruminate on whether society has a duty to avoid separating families. The judge never acknowledged any contribution to the state by millions of workers in the shadows.

Instead, he characterized the president’s initiative, which would provide work permits to the parents of children born here, as an example of the executive branch exceeding its authority.

The decision to enjoin the programs involved dry legal issues such as whether Texas had standing to sue, and whether the executive branch could act without congressional input. But peel away the layers and at its core the case reflects how the judge — and society at large — perceive these immigrants.

In his opinion in February, Brownsville Judge Andrew Hanen resurrected the same case that Texas failed to prove more than 30 years ago: that illegal immigrants pose an undue economic burden on Texas. The judge delved into the minutia of how much Texas would have to spend to issue driver’s licenses to undocumented immigrants protected by President Obama’s initiative, never considering how much Texas benefits from its shadow labor force.

And he went further, conflating illegal immigration with the threat of terrorism.

“While the States are obviously concerned about national security, they are also concerned about their own resources being drained by the constant influx of illegal immigrants into their respective territories, and that this continual flow of illegal immigration has led and will lead to serious domestic security issues directly affecting their citizenry,” the judge wrote.

A population of hard-working parents of U.S. citizens had become a menacing horde invading our shores and threatening our security.

The underlying case still sits with Judge Hanen awaiting further deliberation. The government appealed Judge Hanen’s injunction; whether or not that injunction will be overturned now lies with the Fifth Circuit Court of Appeals in New Orleans. Will that court have the courage to address our responsibility to the families who inhabit our shadow labor pool?

I long for the days when judicial decisions had sweep and grandeur. We were a country on the rise, so big and powerful that we could look at ourselves and know we could do better. Today’s legal drama in Texas reflects a country that is diminished. Our concerns are narrow and miserly.

We will soon see which of our nation’s inclinations wins out — to punish and blame a vulnerable population or to accept and welcome them into our society.

Pamela Hartman is a certified immigration law specialist in Los Angeles. She serves on the executive committee of the immigration section of the Los Angeles County Bar Association.

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