January 15, 2004

More MALDEF Madness—But Federal Judges Aren’t Immune

By Marcus Epstein

[Previously by Marcus Epstein: Indiscriminate Anti-Discrimination Enforcement: Why Is It Illegal To Check For Illegals?]

Last fall, Virginia Attorney General Jerry Kilgore released a memo to public-funded universities telling them not to admit illegal aliens.

It seems like common sense to most Americans that illegal aliens should not be eligible for government services, except for a free deportation.

But between the federal courts and the radical Latino lobby, things are not that easy.

Thus the Mexican American Legal Defense Fund has sued the several Virginia universities—including William and Mary, which I attend—for not accepting illegal aliens.

Most of the educrats in Virginia are simply denying that they practice such a policy, or else blame it on the Attorney General. Last November, The Washington Post reported that there were still at least 66 illegal aliens enrolled at Northern Virginia Community College, though they were asked to pay out of state tuition rates. Despite Kilgore’s memo, the college administration was apparently determined to allow illegals to attend the college. Max L. Bassett, [nvbassm@nvcc.edu] the vice president of academic and student services at NVCC told the Washington Post, “We're not trying to open our doors to terrorists or people who were trying to sneak across our borders. We are trying to serve residents who have been here for many years." [Illegal Immigrants Still Being Enrolled at NVCC by Peter Whoriskey, Washington Post, November 29]

The only defense offered by Karen Cottrell, [krcott@wm.edu] William and Mary’s Dean of Admission, was that the college did not interpret Kilgore’s memo to bar “undocumented citizens” from entering the college. She also emphasized that “diversity and having a broad range of students at William and Mary is certainly a goal.”

Apparently, illegal aliens are part of that “broad range” of students.

It is not even clear that many of the plaintiffs in the MALDEF suit were actually denied admission for being illegal aliens. Not one plaintiff in the lawsuit was directly told that they were rejected because of their immigration status. The College of William and Mary and the University of Virginia, both defendants in MALDEF’s suit, are two of the most competitive public universities in the country. It is very possible that even students with “exceptional” grade point averages and SAT scores would be denied regardless of whether or not they are illegal aliens.

Jane Doe 3, who is suing William and Mary, applied in 2001, which was over a year before Kilgore’s memo. Furthermore, this plaintiff is currently attending an unnamed Virginia college, which shows that many schools are still not doing much to root out illegal aliens.

This is not the first time MALDEF has sued over illegal aliens receiving government privileges. In 1995, it sued California to get Proposition 187, the enormously popular initiative measure that denied illegal aliens certain public benefits, overturned. The rationale for overturning the measure was by denying privileges to illegals, they were unconstitutionally regulating immigration which they claimed was a federal matter. (Proposition 187 was never definitively overturned, but it was held prisoner by Carter appointee Judge Mariana Pfaelzer until incoming Democratic governor Gray Davis was able to make a deal to murder it.)

MALDEF makes a similar argument in regards to Kilgore’s memo. They claim that by denying illegal alien’s admission, Virginia universities are

“engaging in an impermissible regulation of immigration, and/or are impermissibly occupying a field that Congress has the exclusive authority to occupy, and/or have impermissibly implemented a policy that is in conflict with existing federal law on immigration and the United States Constitution, in violation of the Supremacy Clause of the United States Constitution. Art VI cl. 2 and the Commerce with Foreign Nations Clause Art. I sec 8 cl.3.”

This claim is dubious in many ways. For starters, the clause that MALDEF refers to gives Congress the authority to “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” While some economists see trade and immigration as essentially analogous situations, this is clearly not the case. People, unlike commercial goods, vote, take up public funds, cause population strain, and can attend universities with affirmative action at Virginia taxpayers expense. The Founders clearly did not see immigrants as commerce, as the States controlled immigration policy prior to the Civil War. Immigration policy is not listed as one of the powers of Congress in the Constitution.

Plus it is hard to see how not admitting illegal aliens to a college qualifies as setting immigration policy. Illegal aliens are lawbreakers by their very nature. All of the plaintiffs are in the category of deportable aliens under the Section 237 of the Immigration and Nationality Act.

The colleges are not detaining illegal aliens or setting immigration quotas. They are simply saying they are not going to accept lawbreakers. By MALDEF’s logic, if the colleges did not admit someone who had a warrant for drug dealing, they would be taking responsibilities that belong to the DEA.

Similarly, the 1986 Immigration Reform and Control Act established that individual employers have a legal duty not to hire illegal aliens. But by MALDEF’s logic, every single businessman in the country is usurping the power of Congress by unconstitutionally regulating immigration by not hiring illegals.

In fact, of course MALDEF and most of the federal judiciary care very little about the U.S. Constitution. This past summer, when the Supreme Court affirmed a constitutional right to affirmative action and homosexual sodomy, the majority cited European laws and the Pledge of Allegiance.

The notoriously liberal Ninth Circuit Court of Appeals has gone as far as granting political asylum to an illegal Mexican transvestite that he would be persecuted in his homeland.

Virginia’s best chance to stop MALDEF and the other immigration enthusiasts making up the Treason Lobby is by bringing the issue to the forefront of public debate—where popular opinion will certainly be on their side.

Marcus Epstein [send him mail] is an undergraduate majoring in history at the College of William and Mary in Williamsburg, VA, where he is an editor of the conservative newspaper, The Remnant. A selection of his articles can be seen here.