Tuesday, November 16, 2010

Martinez v. Regents of Univ. of Cal. (Cal. Supreme Ct. - Nov. 15, 2010)

Did you ever think that the California Supreme Court could decide an illegal immigration case unanimously?  Apparently it can.

The question is whether California's provision of resident tuition to illegal aliens is preempted by federal law; particularly, 8 U.S.C. sect. 1623, which was designed to prohibit such discounts.  The California Supreme Court unanimously holds that, no, the provision at issue isn't preempted, since it doesn't give in-state tuition to illegal aliens "on the basis of" their residency, but rather grants this discount on "other" grounds -- namely, the fact that they've spent three years in a California high school, etc.

It's a fascinating opinion, and at 25 double-spaced pages, a fairly easy read.  So I encourage everyone to peruse it.  Among other things, it explains -- fairly persuasively -- how a state can circumvent a clear federal mandate, at least when that mandate is expressed in somewhat imprecise words.  As is perhaps the inherent nature of language.

Two parenthetical points before I discuss doctrine.  First, Justice Chin's opinion carefully uses the term "unlawful alien" (rather than "illegal alien" or "undocumented person") and expressly explains why, arguing that this is a neutral "middle ground" between the two terms.  Personally, I'm not sure that "unlawful alien" is much different than "illegal alien" in terms of import and its alleged inherent prejudice, since "unlawful" and "illegal" are basically synonyms.  But so be it.  It's an least an effort.

Second, check out how much everyone on the California Supreme Court is willing to sign on to Justice Chin's relentless critique of legislative history.  Justice Chin's arguments here come straight out of the mouth of Justice Scalia, and are the subject of much dissention in the U.S. Supreme Court, and yet here, everyone is willing to sign onto them.  That speaks volumes about how much Justice Scalia's critique of legislative history -- which, thirty years ago, was heavily relied upon -- has pervaded and found acceptance in the lower courts.  Pretty fascinating.  I would have expected at least a concurrence by one or two justices saying that while Justice Chin might be right in the present case, legislative history shouldn't be relegated to the dustbin of history.  But no one does.

As for the merits, well, I'll mostly leave that for others.  Justice Chin does a good job of saying that the wisdom of illegal immigration isn't for the courts, that the judiciary has a limited job, etc. etc.  And, again, his opinion is fairly persuasive.

But nonetheless let me critique it a tiny bit.

The way that California gets around the federal law is by using proxies.  The federal law says that aliens not lawfully present in the United States can't get in-state tuition on the basis of residence within a state.   So California says, fine, we won't give them reduced tuition on that basis.  Rather, we'll give everyone in-state tuition who attended high school in California for three years and graduated.  Mind you, the vast majority of those people are in fact California residents, for the simple reason that you generally attend high school in the state in which you reside.  But not everyone does.  Some students go to California boarding schools but technically reside elsewhere.  A select few students in border districts go to schools across state lines.  So while the vast majority of people who qualify under the "in-state tuition for three years in a California high school" are already residents, and hence for whom the law doesn't matter, there are some people for whom it matters a lot.  The vast majority of whom are unlawful aliens, but some others are U.S. citizens.

Hence, the California Supreme Court holds, there's no conflict with the federal statute.  We're not giving unlawful aliens in-state tuition because of their residence within the state.  Rather, we're giving them in-state tuition because of their status as high school students in the state.  So what the federal statute precludes is not what we do.  Thus no preemption, either express or implied.

This is a neat trick, and it's one that the Legislature deliberately thought about when it passed the California statute.  The goal was to enact a statute that got around the federal statute.  The California Supreme Court holds that they succeeded.  Unanimously.

But I wish that Justice Chin had explored this issue in a tiny bit more detail.

I agree with him (and the Court) on express preemption.  When a statute says that you can't give X benefit due to Y, that doesn't preclude you from giving X benefit due to Z.  Y is not Z.  Moreover, as Justice Chin carefully (and admirably) establishes, Y is not even coterminus with Z.  If the federal statute wanted to stop X from being provided based on Y or Z, it could have said so.  But it didn't.  Hence no express preemption.

But implied and/or conflict preemption is a different, and more difficult, story.  Here, the purpose of the federal statute was clearly to prevent unlawful aliens from being entitled to in-state tuition when legal citizens (albeit out-of-state ones) were not.  Classically, the way that state universities had granted such a benefit was to grant in-state tuition based upon the residence status of unlawful aliens.  So the federal statute targeted that prevailing practice by prohibiting it.

The scope of that prohibition, however, may well be broader than the mere text of the statute.  For example, suppose that a statute says that you can't give X based on Y, the permissible purpose of which was to stop A's from getting X.  A state that had previously granted X based on Y then amends its laws to give the same X based not on the now-illegal Y, but rather on Z -- with the deliberate knowledge that all (or nearly) all Z's are Y and that all or nearly all Y's are Z.  Is there really no conflict preemption in such a setting?

Assume, for example, that California grants a $500 tax subsidy to everyone in the NBA, and the federal government -- which disagreed with the wisdom of such a policy -- passes a statute that says "No state shall provide a tax subsidy to an individual based upon his status as an NBA player."  The California Legislature then amends the statute so that it provides the exact same subsidy to anyone who meets all of the following criteria:  (1) is over six foot two inches tall, (2) is required to wear shorts and a tank-top uniform to work, (3) travels to over 20 different cities every year as a part of his work, (4) makes over $500,000 a year, and (5) dribbles a basketball at least fifty times a day.  Notice that Y is not equivalent to Z in this example:  there are some people in the NBA who aren't over 6'2" (or who make less than $500,000/year), and there may also be a few non-NBA players who qualify under the new statute (perhaps sports mascots or well-paid WNBA players).  Would we really say:  "No conflict preemption" in such a setting?  When the clear purpose of the California law is to circumvent the federal law, and when the clear purpose of the federal law is to prevent the benefit payout to nearly the precise individuals who qualify for it under the amended statute?

This, I think, is the hardest part about the case.  Especially when, as here, the trial court dismissed the lawsuit at the pleading stage.  Discovery might well have revealed that while Justice Chin is entirely correct that the population ofY and Z are not totally coextensive, it's nonetheless the case that 99% (or perhaps even 99.9%) of the people who in fact receive in-state tuition under the revised statute are unlawful aliens.  Presumably, at some meaure of overlap, even Justice Chin must concede that there's conflict preemption.  What point is that, and why doesn't the statute here satisfy that quantum?

Presumably, for example, Justice Chin would find a conflict between a federal statute that says "No state shall give a former President a house based on that person's status as a former President" and a state statute that says "We hereby give everyone a house if their first name is William Jefferson, they're married to the current Secretary of State of the United States, and their last name rhymes with 'Minton'."  When Y and Z perfectly (and deliberately) overlap, surely there's conflict preemption, right?  Seems to me that the same may be true at a 99.999% level, or lower.  Doctrinally, that's the hard part of the conflict here.  And one that the majority opinion -- while unanimous -- doesn't really address.

Of course, as with every difficult question, it's surely easier to simply punt.  But I expect a little more from our best and brightest.  Particularly when addressing the tough stuff may well be relevant to the proper resolution of the particular case before the Court.  That's the price, I think, of intellectual honesty.

So there are some lingering questions here.  Even though it's a 7-0.  Which, if nothing else, again make the opinion well-worth a careful read.