If the children of illegal aliens are entitled to a free public education, shouldn't they get food stamps, Medicaid and welfare benefits, too?
Chief Justice Warren Burger raised that question in his stinging dissent from last week's 5-to-4 Supreme Court ruling that the children of illegal aliens are entitled to an education. "Is the court suggesting that education is more 'fundamental' than food, shelter or medical care?" he asked.
In concurring with the majority opinion, Justice Lewis F. Powell offered support to those who would like to extend the precedent to federal programs. "If the resident children of illegal aliens were denied welfare assistance, made available by the government to all other children who qualify, this also--in my opinion--would be an impermissible penalizing of children because of their parents' status," he said.
But lawyers for illegal aliens expect few attempts to extend the ruling to federal social services because Congress has explicitly forbidden giving most federal benefits to illegal aliens. And the court traditionally has been reluctant to overrule Congress on immigration matters, they noted.
Peter Roos, the attorney for the Mexican American Legal Defense and Education Fund (MALDEF) who argued the case, said, "Those bans would be much more difficult to challenge." The constitutional argument of equal protection "could certainly be made. But overriding this is the basic rule, the traditional deference to Congress in this area."
Before filing new suits, he said, advocacy groups would weigh the potential backlash from taxpayers already angry about the cost of dealing with illegal aliens.
Roos also predicted that the strategy for alien-advocacy groups would be to look first at state laws barring social benefits to undocumented aliens, such as the Texas law that the court struck down. For instance, said John Huerta, a MALDEF attorney in Los Angeles, the ruling might help a case in state court where his organization is challenging a local effort to block illegals from getting state-funded medical care.
Another possible target would be state laws that prevent illegal aliens from getting local welfare payments, Huerta said.
Carlos Holguin, of the National Center for Immigrants Rights, said, "I don't think you'll see any wholesale application of this case to federal programs." But he said his group is considering a suit against some new regulations from the Housing and Urban Development Department because they bar housing assistance to households having an immigrant member who can't prove legality.
Because of last week's ruling, he said, it would be possible to argue that the illegal occupant of the household is a "person" entitled to the benefit. "It's too early to say whether we would use that argument," Holguin said. "We could argue it. We may, in fact, argue it."
John Silard, a Washington attorney challenging state school-financing laws, said he thinks the Texas ruling "will be quite useful" in state court cases because it sets up an intermediate standard by which to judge a state's actions.
A 1973 Supreme Court case challenging Texas' school-financing formula resulted in a unanimous decision that education is not a fundamental right. Justice William J. Brennan Jr. took pains in last week's majority opinion not to retreat from this position. But he said education was so vital that the state had to show strong reasons for its discriminatory action, something he said Texas didn't do in last week's case.