UNITED STATES DEPARTMENT OF EDUCATION v ALFREDO TORRES, et.al

____ U S ____ (2013)

The sagging economy had not been good for President Obama, or Democrats in Congress. Republicans, led by the Tea Party had captured the Senate and Presidency. Running on a campaign promise to “Clear up once and for the illegal immigration mess” Senator Thomas Lipton was now set to make good in his promise. Of particular concern to Senator Lipton were reports that an ever increasing avalanche of pregnant Mexican nationals were entering the United States to have their babies. Under current law these children were defined as citizens of the U S and the states in which they resided, thus eligible for all political and social benefits, including social services and a free public education. Lipton believed that provision of these benefits was placing an intolerable burden on cash strapped states such as Texas and Arizona. He believed the only way to alleviate this burden was to alter the interpretation of Section 1 of the 14’th Amendment to deny citizenship to children of illegal immigrants. He was overheard exclaiming to his administrative assistant that “Anyone with the sense of a mallard knows the 14’th Amendment was created to overturn Dred Scott, nothing more, nothing less.”

Lipton knew the most certain way to accomplish his goal was to redefine citizenship via amending the U S Constitution as some presidential candidates had suggested. This approach required a 2/3 vote in both houses of Congress and ratification by the states, a process that would take years at best. The quicker, though more problematic, alternative would be to ama\end the Immigration Reform Act of 1996. With the help of a number of conservative think tanks, he created and introduced into the Senate the following provisions, immediately dubbed by the media as the Lipton Tea Party Amendment.

Section 1: For the purpose of bestowing Citizenship of the United States or any state or territory within its borders, the term “person” in Section 1 or the 14’th Amendment shall be interpreted to mean” any person born to at least one parent who is already a Citizen, or who is a long term resident of the UNITED states or its territories. All persons born to illegal immigrants or to persons with short term temporary visas are excluded from a claim of birthright as a citizen of the United States, or the state in which they were born or reside.

Section 2: The application of this definition of personhood shall be applied retroactively to all tghose born after September 11, 2001.

Section 3: Prior to receiving any welfare or medical assistance funded by either state or federal funds for minors under their care, or enrollment in any elementary, middle, or high school receiving federal or state funds the birth certificate, naturalization papers, or visa of at least one parent shall be provided to the agency providing service or to the school district in which the children are to be enrolled.

Section 4: Any state or local unit of government failing to enforce this act, or aiding any person in avoiding it, shall lose all current federal aid and any future aid for a period of five years. Any specific individual failing to implement this act, or aiding any person to avoid it, shall be subject to 18 months imprisonment in a federal facility and a fie of $10,000.

Section 5: The Departments of Education and Health and Human Services shall be responsible for monitoring compliance with this amendment.

Perhaps because of the discovery of two murdered border agents, the Lipton Amendment passed the Senate 62 – 38 and the House of Representatives 309 – 122 and was signed by the President in record time.

Knowing that her school district stood to lose millions of dollars of state and federal aid, Superintendent Amy Goodheart of the San Jose Unified School District published notice of the new requirement several weeks before the start of the school year. The notice generated a firestorm of protest in the predominantly Hispanic community in which the school district was located. Aided by the ACLU, the San Jose Latino Community Aid Committee filed suit in a Federal District Court, seeking a permanent injunction against the implementation of the Lipton Amendment on behalf of Alfredo Torres, a seven-year-old son to illegal immigrants who would be subject to denial of citizenship and enrollment in school.

Lawyers based their argument on several key points. First, Congress exceeded its authority by defining personhood statutorily rather than by amending the Constitution. Secondly, even if Congress had such authority, the act was unconstitutional because it created a “suspect classification,” based on the citizenship of parents. This classification singled out a group of children with traits beyond their control, a clear violation of the Equal Protection clause of the 14’th Amendment. Finally, the denial of services to childrwn such as Alfredo ran contrary to the Court’s decision in Plyler v Doe (1982).

In oral argument the Department of Education argued that nothing in Article I or V of the U S Constitution, the relevant articles here, forbade Congress from clarifying the meaning of personhood in the 14’th Amendment. In actuality, Article !, Section 8, Clause 18 of the Constitution and Section 5 of the 14’th Amendment grant Congress this authority. Congress was simply enforcing the Citizenship Clause of the 14’th Amendment in ways the framers intended. Furthermore the Act simply distinguishes between those who are here legally and illegally, and as such creates no “suspect class” as determined by any decision of the U S Supreme Court. Finally, because the Federal Government has imposed restrictions, state and local units of government are not covered by Plyler in this instance. Finally, citing Mathews v United States (1976), Congress may determine who and under what conditions “aliens” may receive benefits.

Judge Felicia Doright rejected the argument of the DOE and issued the injunction. She ruled that the plain meaning of Section one of the 14’th Amendment dominates here and that the meaning can only be reinterpreted via Amendment. The actual wording of the Amendment, rather than the intent of the framers, is how the Constitution must be interpreted; therefore Congress had exceeded its authority be passing the Lipton Amendment.

Relieved of her dreaded responsibility, Ms Goodheart indicated the School District would not appeal; however, the Department of Education continued the cause.

A three judge panel upheld the injunction. Two judges said that Congress had not exceeded its authority and that other forms of interpretation then “plain meaning” were valid. However, the Act was unconstitutional because it creates a suspect class. By denying children social services and a public education on the basis of traits over which they have no control, Congress is violating the equal protection implicit in the prenumbra of the 5’th and 9’th Amendments of the U S Constitution. A third judge concurred with the results, but for a more narrow reason. He believed the Court need not address the “Plain Meaning” or “equal protection” matters. Rather, the Act was unconstitutional because its retroactivity made an ex post facto law, specifically prohibited by Article 1, Section 9 of the Constitution.

Disappointed, the DOE appealed to your Court.