Althouse: The case that won the empathy prize.

June 15, 2009

The case that won the empathy prize.

Context of the competition.

The winner.

8 comments:

Cedarford said...: Not surprising. The ruling that children here illegally from foreign countries "deserved" US taxpayers to pay to educate them triggered a flood of illegals accessing that and other social services.

And trigggered new waves of immigrants - not driven by that fact alone - but strongly encouraged that by invading the US they got free and better medical care than in theor native lands, states whose courts applied the SCOTUS decision to welfare, food stamps, funeral costs, social counseling, free shelter ---as well as schools (then) much better than they would have had their kids go to in their native lands.

This "empathetic decision" - unbased on law and precedent - also shifted the immigration pattern away from skilled foreigners granted visas to unskilled. That took more in taxpayer funds than they contributed. While enriching owners in places distant to the social services burden placed on local communities with their cheap labor. (If you keep the "help" in the Bronx, you benefit from the nannies, landscapers, and cheap illegal workers in your enterprises in NYC - your taxes in Scarsdale stay low, while they go up in the Bronx. Same pattern in California).; 6/15/09, 9:11 AM
Unknown said...: I wondered why when I enrolled my (foreign) child in school, there was an option to tick if 'the student’s application for a social security number would require disclosure of his illegal immigration status to a federal agency'!

Clearly requiring them to disclose their status would deny them due process.

- I hate empathy.; 6/15/09, 10:43 AM
Wince said...: This should be popular...

I'm not sure I'd put Plyler in the “pure” empathy column. Ironically, I think Brennan's majority opinion in Plyler has a lot more in common with Rehnquist’s majority opinion in my choice, Deshaney, than with the Blackmun / Brennan empathetic dissents in Deshaney. In both cases, the majority uses the failure of Congress and the federal government to act to arrive at its stark result.

Brennan in Plyler is saying that it's Congress's federal responsibility to enforce the immigration laws. If Congress fails to accomplish that, for whatever reason, including the dubious one's Cedarford states above, a state cannot attempt to "enforce" that law simply by denying access to a public education otherwise available free to all children.

Correspondingly, what Rehnquist argued in DeShaney is that congress, in its express abrogation of state sovereign immunity under sec. 1983, included a “state action” requirement, but failed to include a cause of action for state inaction. Rehnquist simply refused to judicially insert such an "inaction" predicate, because it would disturb the entire existing framework for express abrogation of state sovereign immunity. Had congress included a "state inaction" cause of action, I’m certain Rehnquist would have had no objection to opening the coffers of the state of Wisconsin to Deshaney.

Conversely, what the empathetic dissent in Deshaney said was: express abrogation by congress be damned, in this one case, make an exception, “Poor Joshua!”

Now, I would agree that any decision that used the 14th Amend (as opposed to, say, pre-emption) to prevent states from actually enforcing the immigration laws by means of apprehension, detention and removal (even by the denial of income support payments or in-state college tuition) would be a decision that would fall much, much, much more in the empathetic column. But that contrast makes my point that Plyler is less so.

Given the lack of pure enforcement action and the prospect that we might arrive at a point where state or federal governments could, as Cedarford eloquently states, look the other way to allow illegal immigration with a wink and nod, yet exclude the children access to public education, would indeed be the basis of a resident underclass, which would have tremendous social ramifications outside of, and pure empathy for, those in the affected group.

So, whether or not Plyler was correctly decided, and I'm not saying it was, nevertheless I’d say Brennan’s opinion in Plyler isn’t as pure an empathy play.; 6/15/09, 11:19 AM
mccullough said...: Definitely the best example I could think of.

"But more is involved in these cases than the abstract question whether § 21.031 discriminates against a suspect class, or whether education is a fundamental right. Section 21.031 imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation."; 6/15/09, 4:39 PM
Synova said...: So...

Is there any benefit to US citizenship at all?; 6/15/09, 4:42 PM
Synova said...: "Section 21.031 imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives."

Child abuse!

Take them away from their criminal parents *permanently*, adopt them out to US citizens giving them *citizenship* status...

... and send them to school.

I'm all for empathy... but policies have consequences and while my suggestion may sound harsh, it solves two problems at once.; 6/15/09, 4:48 PM
former law student said...: The ruling that children here illegally from foreign countries "deserved" US taxpayers to pay to educate them

If you know how to live in the US without paying taxes, please let me know ASAP.

With rare exceptions, people pay taxes every time they go to the store. Tenants pay their landlords' property taxes. While some workers may escape income and FICA taxes by working under the table, school districts are typically funded from local property taxes and other local taxes. Thus while illegal immigrants may not be funding the bank bailout or the war in Afghanistan, they are likely helping to pay for the schools where they live.; 6/15/09, 7:27 PM
Duncan said...: iIlliteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of that deprivation on the social, economic, intellectual, and psychological wellbeing of the individual, and the obstacle it poses to individual achievement,

I guess Brennan never heard of home schooling or private schooling. 75% of the kids in many poor countries are privately schooled. See The Beautiful Tree.

I guess my kids are illiterate since they never attended slave schools. Perhaps children deprived of government instruction would be better off. I guess I'm just too empathetic.

Empathy can swing both (or a hundred) ways.; 6/15/09, 8:58 PM