Wednesday, October 25, 2017

Garza v. Hargan

I remember a case from ConLaw from many years ago (closer to 30 than not), Plyler v. Doe.  The Supremes held that undocumented immigrant children had a right to a public education under the 14th Amendment (which applies due process and equal protection to "persons"; that word becomes important in a minute), not just to citizens or those here in accordance with immigration laws.  I remember because I knew the "Plyler" of the case; he was the superintendent of schools in my hometown.  I went to school for 12 years with his son.  It's easy to hang on to things like that.

I haven't held on to my knowledge of how Constitutional law has defined "persons" under the 14th Amendment, though it is my impression the reasoning used in Plyler has not been discarded or superceded, at least not directly.   And yet:

Does an alien minor who attempts to enter the United States eight weeks pregnant—and who is immediately apprehended and then in custody for 36 days between arriving and filing a federal suit—have a constitutional right to an elective abortion? The government has inexplicably and wrongheadedly failed to take a position on that antecedent question. I say wrongheadedly because at least to me the answer is plainly— and easily—no. To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.

That's from the dissent to the D.C. Circuit court ruling that a minor immigrant can receive an abortion while in government custody.  The same judge, on a panel of three, ruled she could not; en banc, that judge was overruled.  And from my outline of the 14th Amendment perhaps you see the problem already:  the Constitution does not divide us into citizens and non-citizens.  This is not Rome, nor John Kelly's Heinlein fantasy of a new Sparta.  The dissent cites a large number of appellate cases, but never cites Plyler (at least my quick examination doesn't discover it).  No surprise, as Plyler stands directly against the dissent's claim that undocumented immigrants do not have due process or equal protection rights.

Except, of course, as persons, they do.  To this day, the state of Texas (and all other 49 states) have to accept and educated undocumented minors in their public schools.  They are persons, and the 14th Amendment grants them certain rights, regardless of their immigration status.  I'm glad to see such an egregiously legally ignorant decision overturned; I'm disgusted that it was ever penned in the first place.

In fairness, the government's case was based (per news reports) on it acting in loco parentis and preserving the "best interests of the child."  I presume that meant the 17 year old mother, since a fetus is not afforded the status of "child" under Texas family law (there is no Federal family law).  The concurring opinion to the per curiam en banc reversal notes the government doesn't try to raise the issue of the child's legal status as a bar to constitutional protections.  So for the dissent to take off on a 14th Amendment argument is simply bizarre.

The struggle to humanize people who are too easily de-humanized (the judge harps on "illegal" as if such immigrants were criminals morally equivalent to felons) continues.

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