IMMIGRATION: Legality of effort to repeal Prop. 187 is questioned

Some California legislators are poised to repeal Proposition 187, a controversial 20-year-old initiative that was ruled unconstitutional by a federal court and never enforced. But law scholars question whether the elected officials have the legal authority to act on their own.

“The California Constitution says you can’t amend or repeal an approved measure without submitting it to the voters unless there’s a waiver clause,” said Jessica A. Levinson, a Loyola Law School professor who specializes on election law.

Prop. 187, which sought to cut off public education, health care and welfare benefits to undocumented immigrants in California, had no such waiver, said John C. Eastman, a Chapman University Law School professor and founding director of the Claremont Institute’s Center for Constitutional Jurisprudence.

“These guys are acting lawlessly,” Eastman said. “They’ll do it if they think they can get away with it and no one will challenge them.”

California voters approved Prop. 187 – also known as the “Save our State” campaign – in November 1994 with almost 60 percent approval. A federal court ruled most of the provisions unconstitutional, and the measure was not enforced. But some of the language remains embedded in various codes, including education codes.

Sen. Kevin de Leon, D-Los Angeles, said he learned of its existence in California codes accidentally. He was recently talking to his staff about his personal history and recounting how he “cut my teeth politically against the 187 campaign.” Chief of Staff Dan Reeves decided to look into the proposition and found it had not been removed.

“These code sections are unenforceable. The Legislature has the right and power and authority to maintain the codes with our statutes and that’s we’re doing,” Reeves said.

“Essentially, it’s code cleaning,” he said.

De Leon’s staff consulted with the state’s legislative counsel, Diane Boyer-Vine, whose opinion was that “it’s not necessary to go back to the voters,” Reeves said.

State Sen. Richard Roth, D-Riverside, said unconstitutional laws should not remain on the books.

“The Constitution is the highest law of our nation, and I support any effort to remove any statute or language found unconstitutional,” he said.

Sen. Mike Morrell, a Rancho Cucamonga Republican who represents parts of Riverside and San Bernardino counties, said in a statement that he has not yet decided whether to vote for de Leon’s bill.

“I have not yet had a chance to review the specific language of the bill or the legal questions surrounding it,” he said.

Robin Hvidston, executive director of the anti-illegal-immigration We the People Rising and an Upland resident, urged legislators to keep the law in California codes.

“To me, it’s important because this was the direct voice of the people,” she said. “The people’s voice, the people’s will was overruled by the courts.”

She worried that stripping Prop. 187 language from state codes would set a dangerous precedent and lead to other voter initiatives being gutted.

But Maria Rodriguez, an activist with the Inland Empire Immigrant Youth Coalition, said passage of de Leon’s bill would be another signal by the Legislature that California is “an immigrant-friendly state.”