Thomas A. Saenz | Ricardo Palavecino for "187"

Thomas A. Saenz: A Brilliant Civil Rights Lawyer Honed by the Fight Against 187

Thomas Saenz: I'm Thomas Saenz, President and General Counsel of MALDEF, the Mexican American Legal Defense and Educational Fund. I had just started out as a staff attorney at MALDEF in the fall of 1993, which was a year before Proposition 187 was enacted by California voters, so much of my first year was involved in the campaign against Proposition 187. Like many staff attorneys at MALDEF, I would go out and debate the proposed initiative with proponents in front of community groups, and then preparing particularly in the summer of 1994, for the lawsuit, to challenge Proposition 187, which had to be filed at the day after the initiative was voted on at the ballot.

I came to MALDEF after two clerkships with federal judges in Los Angeles after I graduated from law school. It was really my dream when I went to law school to work at MALDEF to pursue a career as a civil rights attorney working on behalf of the Latino community. In 1993, it was MALDEF's 25th anniversary, but we were facing in California, our headquarter state, really a wave of anti-immigrant lawmaking and proposals.

The first assignment I got as a staff attorney was to work with others in trying to prevent Los Angeles County from enacting an anti-day labor ordinance that would have targeted day laborers and prevented them from seeking work while standing on the sidewalk. That ordinance really targeted day laborers because they were immigrant men and folks were uncomfortable having them in their communities and sought to restrict their rights through an ordinance in LA county that would have basically imitated ordinances that had passed in other places, including Agoura Hills, also in Los Angeles County.

Beyond that, at the state level, there were anti-immigrant proposals across the board. It's easy to forget, in this day and age when we have such a progressive set of laws in California for immigrants, but it was in 1993, that the state legislature by a bipartisan vote that actually included Latino legislators as well, enacted the restriction that prevented undocumented immigrants from receiving driver's licenses, and that would remain on the books for 20 years.

Well, what would become Proposition 187 was one of at least three anti-immigrant initiatives that were being circulated for signatures in 1994. Of the three, it was the most extreme, the most draconian, it would have targeted every government service, as it ultimately did. The others were more limited in their scope, so we were following all three but viewed what would become Prop 187, then known as the, "Save our State Initiative," as the most dangerous and most extreme, ultimately, that is the one of the three that qualified for the ballot.

Proposition 187 was the most extreme anti-immigrant state law in decades. Throughout the country, there hadn't been anything that restrictive really since the early 20th century, so it was a mark of extreme anti-immigrant lawmaking. In my view, it also clearly targeted not just undocumented immigrants, but everyone in the Latino community, because if it were ever implemented, it would have affected everyone's right to access government services based on, "Reasonable suspicion" of who was undocumented, and we knew at the time, that those suspicions would be based on race, and language, and name, and it would definitely affect the Latino community, in particular, in the ease of accessing necessary services, from education, to healthcare, to social services to even affecting how you interact with police.

It didn't look like it would get the signatures. We had inside information, one of our colleague organizations had inside information that they were not making the progress and collecting signatures that they needed to. It was only toward the end of their period of time to collect signatures that the California Republican Party's mailer to all of its members seeking signatures that put them over the top, so but for that intervention by the California Republican Party, presumably directed to do so by Governor Pete Wilson, the initiative wouldn't have had the signatures to qualify for the ballot, but that mailer, at a significant cost for the California Republican Party, is what made the difference in qualifying Prop 187 for the ballot.

Early on when it qualified for the ballot, but the polls told us that every community, including the Latino voting community, would overwhelmingly support Proposition 187, so we all knew at MALDEF and all of the other organizations working against the initiative that we had an uphill battle to convince even our own communities to vote against this extreme anti-immigrant measure. In the end, the exit polling on Election Day told us that three-quarters of Latino voters voted no, so we did get the message out and convince the Latino community to vote against it.

It's also true that a majority of African American voters voted against it, a majority of Asian American voters voted against it, so even though Proposition 187 had 59% of the total vote, it was really the white vote that gave it the margin of victory that made it a victorious proposition. Because all of the other major racial groups, Latinos, African Americans, and Asian Americans voted majority against Proposition 187.

Not only the polling numbers which showed overwhelming support in every community but the atmosphere in the 1994 California. A very anti-immigrant sentiment, including those who supported immigrants in legislative positions, believing that they somehow had to support some form of anti-immigrant lawmaking like the driver's license bill, in order to assuage their constituency in order to prevent, in their view even more extreme laws from being passed. There was a pervasive atmosphere in California really of anti-immigrant sentiment and a belief among policymakers that you had to seriously consider laws that targeted immigrants kinds of laws that wouldn't ever be considered today in California.

There were lots of laws that were being considered and in fact, MALDEF's legislative lawyers and advocates in Sacramento had to work daily, including with support from some of us down in Los Angeles, to really attack all of the anti-immigrant proposals, but many got enacted nonetheless, including the restriction on driver's licenses for the first time preventing undocumented immigrants from obtaining driver's licenses.

There was another law very recently repealed that would have required those providing employment services to post signs saying that if you were undocumented, you weren't eligible to receive services and to deny those services, but really, the proposals ran the gamut. There was in Los Angeles County and a number of cities around the state, proposals promoted by the anti-immigrant group, FAIR, to restrict the rights of day laborers prevent them from even standing on public sidewalks to express themselves, expression protected by the First Amendment, express their availability for work. It was really an atmosphere, particularly in organizations like MALDEF where we were working on policy issues, where almost daily, there were new proposals that would restrict the rights of immigrants.

Because it was so extreme, I think most policymakers, Democratic policymakers in California ultimately opposed. There were significant folks who did support it on the Democratic side. In California, on the Republican side, there was almost unanimous support among Republican lawmakers to vote yes on Proposition 187, but notably, there were significant dissenting voices outside of California.

Then-Governor George Bush of Texas came out publicly against Proposition 187 and indicated that his state would approach the issue of immigration in a very different way. William Bennett, former Education Secretary, Conservative, came out against Proposition 187, and Jack Kemp, who a few years later would be the Republican Vice Presidential nominee, came out against Proposition 187.

Unlike today, under Donald Trump, where there seems to be almost unanimous Republican support for his very nativist, anti-immigrant rhetoric and policymaking, at least with Proposition 187, which received national attention, there were significant prominent Republican leaders outside of California, at the national level, who recognized how dangerous the initiative was, how negative it was, how divisive it was, and came out and endorsed a no vote. We were all assigned at MALDEF to go out and debate Proposition 187 in front of as many community groups as we could because we were trying to turn around those early polling numbers that showed broad support in every community. There was a coordinated effort to campaign to get people assigned to go out and address community groups. Sometimes those were presentations about the dangers of the initiative, sometimes they were debates. I did have the chance as a young staff attorney to debate some of the major identified proponents, some of the purported authors, because there were so many, of Proposition 187.

It was a very interesting experience because these proponents didn't really have strong policy arguments in support of Proposition 187. In the end, their message was about sending a message to Washington DC that would exhort people to ignore all of the policy arguments on the various provisions and simply vote yes to send a message to Washington DC, that California disagreed with how the federal government was addressing immigration and in particular, undocumented immigration to the state of California.

Most troublingly, sometimes that send a message exhortation from the proponents ended up relying on the then circulating the Reconquista theory. The argument was that there was a true conspiracy by Mexico and Mexican Americans to take back the Southwestern United States, to reconquer it. Their argument was we needed to send a message from the state of California to the federal government in order to prevent that conspiracy to take back the state of California and other parts of the Southwest. It really astounded me that such an obviously fallacious rumor and argument would be such a centerpiece for those who were arguing to vote yes on Proposition 187.

We would debate before local community groups at universities, at law schools, and some of the folks on the other side were Glenn Spencer, who was a notorious anti-immigrant leader from the San Fernando Valley, Barbara Co, who was from Orange County, and of course the lead author, not the two former INS officials but Ron Prince also from Orange County.

That's why 25 years later, it's such an irony that Orange County has now flipped to being a blue County when it was just a quarter-century ago, really where this anti-immigrant movement, this anti-immigrant sentiment behind Proposition 187 was at its strongest with so many of the major proponents from that area. Those were some of the folks who were out arguing about Proposition 187, debating it with us in front of community groups.

Well, I think it was really eye-opening for me as a young attorney who hadn't been involved in these kinds of debates to see the final really resort by the proponents to this crazy Reconquista theory, that there was a real conspiracy by Mexico and Mexican Americans to take back the state of California, and that that would be the main basis for urging people to vote yes. I have to say, as someone without experience at the time, it struck me as not consistent with what I had ever been taught about how public policy debate should go forward.

Here 25 years later, we certainly see that same kind of false rumormongering promoted at the highest levels, even from the White House, but for me back then, it was astounding. This certainly was not consistent with what I had been taught or led to believe was what public policymaking was about, but the truth is when you're dealing with voter initiatives, that's when too often these kinds of arguments that really resound in barely veiled racism, divisive messaging are used and sometimes as with Proposition 187, used successfully in getting such extreme support from the white voting community that the total vote would be 59% in favor.

Well, sure, we all had to be prepared to debate the issues. As I said, ultimately, the proponents didn't want to debate the issues so I did come up with a mnemonic device and put it on a piece of paper and took it to every debate which was the seven Cs, which was the seven flaws in Proposition 187, all of them beginning with the letter C. It ranged from children who were potentially the most affected by Proposition 187, since they would be denied enrollment in kindergarten through 12th-grade public school despite a mere dozen years earlier, a Supreme court decision MALDEF case Plyler v. DOE that made it clear the constitution requires that every child, regardless of status be provided an education.

Another C was crime because when you have law enforcement, as 187 would, involved in immigration enforcement, then people who are victims and witnesses of crime don't come forward, and that then helps crime to really increase, but there were seven C's, each objection to the initiative starting with the letter C and, of course, for me as a lawyer, perhaps one of the most important was constitutionally suspect because not only did the initiative directly contradict the Plyler v. DOE decision, we were also preparing a broader constitutional case together with our allies against Proposition 187 that identified the many legal flaws in the initiative that would prevent it ultimately from being implemented.

MALDEF was involved in the only lawsuit filed the day after the challenge to every provision of Proposition 187, and that preparation began well, months before. The initiative went to the ballot during the summer. It was a coalition of many groups. It was led by the ACLU of Southern California and MALDEF, but there were certainly legal services and other public interest organizations, all of them involved together with a Pro Bono law firm, O'Melveny & Myers, involved in creating that lawsuit that would challenge every provision of Proposition 187.

Simultaneously, other lawyers at MALDEF were involved in preparing a lawsuit to file in state court, ultimately was filed in San Francisco Superior Court, that would challenge the higher education provision of Proposition 187 that would have prevented anyone reasonably suspected of being undocumented from enrolling in any public higher education institution from community colleges through the University of California. There was a lot of work going on separate and apart from the debate in anticipation of the election, a lot of work going on at MALDEF and many other organizations to prepare legal challenges to the initiative.

That was entirely because state law at the time said that any initiative passed by voters takes effect the very next day after the election. Now, since then, California has changed its law because it does seem a little uncomfortable to implement a law the next day after an election when if it's a close election, you might not even know the outcome, but the law at the time was it took effect the very next day so we had to be prepared well in advance of the election itself to go into court to prevent the law from being implemented the very next day.

The following day, because the initiative would take effect, there were at least four lawsuits filed in federal court, all of them in Los Angeles. One of those was the lawsuit led by the ACLU and MALDEF that challenged every provision of the initiative. The other cases challenged the K-12 provision that directly contradicted Plyler v. DOE, a violation of equal protection, but also the very next day in state court, there were two or three different lawsuits filed in Northern California, one of them challenging the K-12 provision, one of them joined by MALDEF challenging the higher education provision and another, I believe challenging the social services provisions of Proposition 187.

There were a number of lawsuits being prepared, all of them needing to be filed the very next day. As weeks and months went by additional lawsuits were filed. Ultimately, the consolidated federal case involved five different lawsuits and a number of different intervening parties to challenge different provisions of Proposition 187.

I think the whole case from beginning to end against Proposition 187 involved constant really collaboration and consultation among lawyers at different organizations and at different levels of experience, all of those consultations were really extraordinary discussions of strategy, both in the preparation of the lawsuit but in the pursuit of the lawsuit as well, because so much of the life of what ended up being a four-plus year journey involved different strategies by the state that we needed to respond to and intervening occurrences, including in 1996, the enactment of federal legislation that touched on immigrants, eligibility for various public services.

It was a winding road that involved really a very productive and for a young lawyer like me, a very interesting, a very educational experience of ongoing brainstorming and discussion and arriving at the strategies that we would need. With respect to the case of challenged every provision, the main claim was preemption. That federal supremacy meant that California, no matter how much it might dislike how the federal government was regulating immigration, had no right under the Federal Constitution to enact its own immigration regulations.

There were other claims, we had to have other claims, including equal protection, including procedural due process. Indeed, as a young lawyer, I was assigned to do the briefing on procedural due process in anticipation of the very first hearing in the case. There was lots of ongoing research and education and consultation and strategizing throughout what was not a slam dunk case. We were clear that the education provision, K-12 because it directly contradicted Plyler v. Doe, would get struck down. Really, the rest of the proposition was a much more difficult challenge, in part because there had not been a precedent and a piece of legislation as sweeping, as broad, and as anti-immigrant as Proposition 187.

Well, Proposition 187, like so many voter initiatives, though it was very lengthy and complicated, had some fairly obvious flaws. I think particularly troubling was the use of "reasonable suspicion" as a basis for denying anyone services. Reasonable suspicion is something that's used in the law enforcement criminal law context but it really was unprecedented to essentially prevent someone from accessing much-needed life-saving services based on someone's suspicions, but there were other provisions that were really very curious.

One that attracted a lot of attention during the debate and in the case before the court, involved public servants having to send notices to those they suspected of being undocumented, effectively saying the state of California believes you're undocumented, so legalize your status or leave the state of California. Really unprecedented to think of public servants having to spend their time sending that kind of notice to individuals who came before them. It was really a very odd and oddly constructed initiative, perhaps because it had so many purported authors, but it included many legal flaws that we were able to successfully use during the course of the federal case against it.

No, no, I was working on procedural due process as a young attorney. Ultimately, the case centered on preemption and as the case went on, I became more and more involved in making the preemption arguments and made some of the last significant oral arguments in court. At the very beginning, I was a young attorney and I was assigned to procedural due process but that still ended up really changing my career.

Because on the very first day that we were before the federal court to argue for a temporary restraining order, which actually was a week after the election because Chief Judge Matthew Byrne of the district court had essentially convinced the state not to implement for a week, while we were able to brief the request for a temporary restraining order. About a week after the election, we were in court and an attorney with, at that point 20 years experience, a really respected leader in the public interest community, Mark Rosenbaum at the ACLU of Southern California, was prepared to make the argument in our case.

He had prepared to argue preemption and federal supremacy with a number of moots, or mock arguments so he could prepare. When we got there, the judge's court clerk sent out was sent out and said that the judge was really intrigued by the procedural due process claim and wanted to make sure it was covered in oral argument. Mark had not prepared to argue procedural due process so he turned to me as one of the youngest members of the team and said, "Can you argue procedural due process?" I basically had the time that he was arguing preemption to prepare to get up before the judge and stumble through a very short argument about procedural due process.

I view that as one of the greatest opportunities of my career, and as the case went forward, I got more and more opportunities to argue on preemption and on other critical issues, like whether the law was severable. If we challenged certain provisions, would all of it fall or would pieces of it survive? Indeed, got involved in other cases, including the case that MALDEF participated in state court against the higher education provision and the very curious case that was filed by Pete Wilson himself in state court in Northern California, seeking to have the proposition declared constitutional.

He filed that lawsuit after we filed and included one of our clients as a defendant. That meant we had to go and have that case, move to federal court. I argued to keep it in federal court when the Governor sought to send it back to state court where he filed it, and then to get it transferred down to Los Angeles. Ultimately, when it got transferred to Los Angeles, the Governor dismissed his lawsuit, but that notion of filing a lawsuit when you're already facing a lawsuit claiming the law is unconstitutional. Filing your own lawsuit seeking a declaration that, in fact, it's lawful and constitutional was one of the strange twists and turns of that four-year plus journey in challenging Proposition 187.

I was very nervous arguing procedural due process without preparation prior to the hearing on Proposition 187. When the arguing attorney, Mark Rosenbaum, turned it asked me if I would argue procedural due process because the judge wanted to make sure that that claim would be argued, Antonia Hernandez is my boss, the President and General Counsel of MALDEF was sitting next to me. I really had no choice but to say yes, as nervous as I was and, of course, I was. It was a packed courtroom, including my boss, but really all kinds of luminaries from the legal world and the political world, including as well folks from the other side, but it was very anxiety-inducing. Fortunately, it happened quickly and now, all I remember is that I did it and got through it without too much stumbling.

Plyler v. Doe, which was decided in 1982 by the US Supreme Court was a 5-4 decision, so a close decision, rejecting the state of Texas' law that permitted school districts to either prevent undocumented students from enrolling in public school or to charge them tuition, which was the same as denying enrollment since they would not be able to afford the tuition.

That case was filed by MALDEF in the 1970s and it went to the Supreme Court in 1982. The split court concluded that the Equal Protection Clause of the 14th Amendment requires every state and every school district to provide free public education to every child regardless of immigration status from kindergarten through 12th-grade. Now, that was a great, great victory, but it was 5-4. A dozen years later, when the drafters of Proposition 187 put their initiative together, they included a provision Section 7 that directly contradicted Plyler by requiring that public schools in California not enroll and prevent the attendance of undocumented students in kindergarten through 12th-grade public school.

The authors knew that they were directly contradicting Plyler, but they had a hope of taking the case again, back to the Supreme Court, and convincing a changed Supreme Court to reach a different conclusion. Now, we believe ultimately, if it went to the Supreme Court, we would still prevail, but certainly, the fact that it was a close 5-4 decision in 1982, a mere 12 years before, led the proponents of the initiative to believe they could revisit the law established by Plyler, again in the Supreme Court. They would urge voters to understand the reason that provision was there was to take the case back to the Supreme Court and convinced them to change the decision that had been reached in Plyler, 12 years earlier.

Well, I think at MALDEF we were working diligently to prepare the lawsuits, two of them that we were involved in that needed to be filed the very next morning, so there was still some work being done with our co-counsel to finalize what needed to be filed in court. At the same time, there was great disappointment, that in fact, the initiative was passing by as large a margin of 59% to 41%. No matter what the polling may have told us, we still held out hope, many of us including me, held out hope that ultimately, voters would see the light and reject the initiative.

It was a very depressing, in some ways, day, Election Day. It wasn't indeed until the next day or even the day after that, that we saw the exit polling that at least conveyed to us that we have convinced the Latino community, Asian-American community, and African American community to vote no, on this very anti-immigrant, very divisive proposition. On election day, we didn't know about the exit polling for those different groups. All we knew was that this law was going to be passed by a huge majority of all of California's voters. That was certainly difficult, but at the same time, we did have to do that last-minute work and prepare to potentially be in court the very next day in challenging the implementation of the proposition.

Gregorio T v. Wilson, which was the ACLU, MALDEF, together with others lawsuit against every provision of the initiative, was filed the next day after the election. There were other cases filed, including one that was filed first, and because that case was filed first, it eventually became the name under which all the cases, including Gregorio T, were consolidated in that case was called LULAC v. Wilson.

Gregorio T was a fictitious name that was used for one of the clients signed up. That client, I believe, was a child, a young boy who was very much in need of healthcare services that could be denied under Proposition 187. Of course, he was one of many who were represented in that lawsuit by fictitious names. There were also organizational plaintiffs, so there were many, many different clients, many different plaintiffs involved in both Gregorio T and the other cases with which it was consolidated under LULAC v. Wilson.

Now, once it was consolidated, the case went forward under that name, of the LULAC case which had been first filed, changed to challenge like Gregorio T, every provision of Proposition 187, they amended their complaint to do that. Really, those became the two lead cases as the case moved forward. There were intervenors, I remember cities and counties intervened to challenge the law. There were hospitals that intervened to challenge the law. There were other community-based organizations that intervened to challenge the law.

With four and ultimately, five consolidated federal cases with so many different parties, really every court hearing on the case involved a packed courtroom. The first day you couldn't get in unless you had a Bar card. They wouldn't really leave it open to the public, except for those who were there at the very, very beginning of the morning.

It was a contentious, multifaceted case that went through many years of litigation. It took a long time, because the issues are complicated, but also because the state adopted various strategies, including a strategy of arguing to the judge after we already had a temporary restraining order and then a preliminary injunction that prevented the law from being implemented, the state asked the judge to permit them time to draft regulations that they said would fix the constitutional and legal flaws identified and the basis of the preliminary injunction.

Then the state took really months and months and months without producing those regulations. Ultimately, they never produced regulations, but that was the reason for much of the delay. In the meantime, of course, other things were going on, including Pete Wilson filing his own lawsuit in state court in Northern California, naming some of our clients as defendants. We had to get that case transferred to the federal court, transferred down to Los Angeles where it could be consolidated with the LULAC v. Wilson set of cases.

Before we ultimately got it transferred and consolidated, the Governor dismissed his case because he couldn't keep it in state court, but we had to go up on appeal on the preliminary injunction even while the case was still moving forward, in District Court, and the Ninth Circuit upheld the preliminary injunction and that case still bears the name Gregorio T v. Wilson, because we hadn't yet been consolidated into LULAC v. Wilson.

We had to go through various different motions, including a very late intervention by an anti-immigrant organization named after Alan Nelson, one of the purported authors of Proposition 187. They tried to intervene late in the game because they didn't like the way the state was litigating and they were denied. That denial of intervention went up to the Ninth Circuit and had to be briefed and argued by one of our co-counsel.

There were lots of things going on, including the fact that there were pending state court cases led to a contention by the state of California that our federal litigation should wait, should be put on hold and doctrine called abstention, while the state court cases including the state court case filed by the Governor himself against our clients and others, while those cases were resolved, so we had to prepare and argue against our case being put on hold, so it really is a very complicated case.

LULAC v. Wilson started out as Gregorio T versus Wilson for us at MALDEF but went through many different stages, many different unexpected challenges in the course of the four years before it ultimately went to the Ninth Circuit. That was its own saga involving, fortunately, enough time had gone by a change in the Governor of California, so Gray Davis came in. Governor Pete Wilson was out. That then led to an opening for us to seek, to mediate, and settle the case. Ultimately, we did settle the case with Gray Davis.

One of the reasons we were able to settle the case was because we had lost in the federal court on two minor provisions of Proposition 187, two Penal Code provisions relating to the manufacture, and the use of fake identification documents. No judge had ever upheld those. Had ever held those up, I should say, had ever stopped them from being implemented, and ultimately, we lost but we found across appeal, arguing that those two provisions should have been struck down.

The pendency of the cross-appeal, and I should say that MALDEF, in particular, insisted that we follow that cross-appeal, but the pendency of the cross-appeal meant we had something to offer Gray Davis in exchange for dropping the state's appeal of the decision striking down all of the other provisions of the law. Having something to offer him then enabled him to reach the settlement with us through mediation.

Mediation itself went for many, many, many weeks. They brought in Shirley Hufstedler, who was the first Education Secretary of the country and had been a former Ninth Circuit Judge, one of the first women on the Ninth Circuit Court of Appeals. They brought in Shirley Hufstedler as our mediator. Really, the saga and story of the litigation, federal litigation against Proposition 187, has many different facets and twists and turns over the course of four-plus years.

The temporary restraining order meant that the law could not be implemented, and that certainly created a great sense of calm in the community. Because prior to that, where there was a real threat, that the law could be immediately implemented, we knew that there was much concern and fear in the community, we regularly at MALDEF would put out press releases, urging folks to remain calm and not to take precipitous action because we didn't yet know whether it would be implemented.

The TRO meant we could say, it's not going to be implemented and try to calm some of those rampant fears we saw, in the days after the election that many kids didn't go to school, they were kept from going to school out of a fear that they or their parents would be reported as a result of Proposition 187. We knew that folks were deferring or avoiding appointments that they had to receive health care or to sign up for social services programs, all as a result of the awareness and fear of what Proposition 187 could mean if it were actually implemented.

The TRO was tremendously important in initially introducing some reason for confidence, and calm in the face of really understandable fears and concerns throughout the immigrant community and even beyond the immigrant community. Because the law permitted denial of services on the basis of suspicion alone, even US citizens who fit the stereotype of an undocumented person, or who lacked the necessary ID even though they were citizens, had reason for concern about whether they could continue with schooling, could continue to receive social services, could continue to receive health care services that were so important to them and their families.

We know that so many good things came out of the defeat of Proposition 187, but certainly, one of great concern was Title IV of the 1996 Welfare Reform Act that was passed by the US Congress and signed by President Bill Clinton. That Title restricted the rights of undocumented immigrants to receive services from both the federal and the state government. Indeed, many solid as a federal enactment of pieces of Proposition 187, and that's of great concern, in part, because that law is still on the books today, 25 years later, in our federal statutes.

That not only created great concern in the community, it did create an issue for our case because the area of preemption of federal supremacy with respect to immigration regulation was not as well understood then. This was a relatively new claim in the context of immigration and so when federal law intervened to in essence, in some ways really mimic and repeat what was in the state law we had internal debates and discussions in our team about what effect that would have on our preemption claim and some thought that it actually harmed our preemption claim.

Now, ultimately, and I was able to make this argument in court to the judge, it actually strengthened our claim, because it was a further assertion of the federal government's singular, if not exclusive interest and ability to regulate immigration, including what particular public services immigrants would be eligible for.

Ultimately, after some concerns about the legal impact in the case of the enactment of Title IV of the Welfare Reform Act, we were able to use it to our advantage and to more swiftly bring an end to the case with a conclusive decision that the new federal law confirmed that California was not empowered to do what it attempted to do with 187, which was to regulate immigration, that is an exclusively federal responsibility.

The 1996 federal laws that really had an effect on immigrants' rights nationwide but also had an effect on the litigation against Proposition 187 were a result of the Republican takeover of the house majority under Speaker Newt Gingrich who had a "Contract" with America, that included a number of pieces of legislation. This included the Welfare Reform Act, and the Illegal Immigration Reform and Immigrant Responsibility Act, two 1996 laws that restricted the rights of immigrants, including undocumented immigrants, both taking away services to which they were previously entitled and restricting due process rights in the immigration process for them.

The two laws enacted as a part of the Contract with America and ultimately, signed by President Bill Clinton, still on the books today, have an ongoing negative effect on our immigrant communities. Back in 1996, they enabled us in challenging Proposition 187, to identify clear evidence that the federal government was occupying the field and engaging in its sole authority to regulate immigration, and that meant that the state of California, no matter how much it might dislike what the federal government was doing, had to get out of the field of immigration reform regulation, and had no ability to enact laws like Proposition 187 that was in effect, a substitute for federal immigration regulation.

The 1996 Acts, despite their negative effects, ongoing today, really enabled us to accelerate the end of Proposition 187 in federal court by identifying these indications that the federal government was exercising its sole authority to regulate immigration.

Well, I think the fight against Proposition 187 really established preemption and federal supremacy, as a major claim to use in challenging anti-immigrant laws and indeed, in more recent years, including against Arizona's SB 1070 in the five states that replicated that anti-immigrant law, the main claim has been one of preemption federal supremacy, but at the time of Proposition 187, the preemption doctrine was really a business doctrine.

When I was in law school, it was taught to us as how businesses challenged state tort laws that they didn't like that they believed too extreme. It was not really a law that had often been used in the context of immigration. There was one case, [unintelligible 00:43:25], also coming out of California in the 1970s, that was a centerpiece of our argument that involved an immigration regulatory scheme that used preemption of federal supremacy. Other than that one case before the Supreme Court, really, preemption was seen as a business law doctrine.

I think Prop 187 has established now, I'm sure law schools treat preemption and federal supremacy as they should, as a central element of progressive challenges to anti-immigrant laws at state and local level. Really, the legal case against 187 has established the basis for challenging so many anti-immigrant laws throughout the 25 years since then. I think legally also, it was important to defeat Prop 187 so it would not be replicated in other states, because we knew there would be attempts if the law had been implemented here, to replicate it and implement it in other states.

We did see that with Arizona's SB 1070 in 2009 and '10. When it was enacted in 2010, in 2011, five other states enacted laws that included parts or the entirety of the SB 1070. It was important to prevent 187 from being replicated in other states. Unfortunately, as a legal matter, it did inspire some of the negative changes in federal law that we saw in 1996, but overall, I think it changed the law on immigration, regulation, and restriction nationwide.

It certainly changed the law in other states that might have replicated, and it changed the law in California by helping to inspire, I believe, an effort really more spearheaded by all of the community organizing and the increased naturalization and civic engagement and voter registration, but I think that the legal fight also inspired the elimination of some of the anti-immigrant laws that had been passed and the rejection of future anti-immigrant proposals in the state of California.

There was, of course, a controversy between the different campaigns against Proposition 187, about the presence of Mexican flags in some of the marches against the initiative. I think the reaction of most of us at MALDEF among my colleagues was that that was overreaction. I think that anyone who was pushed to vote yes because of a Mexican flag probably would have voted yes in the end in any event.

I personally don't believe it had an impact. Certainly, it has changed the way organizing in this state around immigrant right issues moves forward, where folks try to ensure that there are American flags that outnumber the flags of other countries, but at the time, I think that that particular dispute was really an overblown dispute. I think it's quite clear that with a 59% to 41% vote on Proposition 187, the Mexican flags in marches did not play a role in the outcome of the initiative.

Well, I think what California has done since Proposition 187 in converting from the most anti-immigrant lawmaking state in the country a mere quarter-century ago, to the beacon of immigrant integration nationwide today, the most resistant state to Donald Trump's rhetoric and his policymaking that so scurrilously and unfairly targets immigrants, that transition is a lesson for the entire country, but within that lesson I think is something critical that's not often remarked upon, and that is we took a state that had a recipe for racial division.

If you think about it, this was an initiative very controversial, that targeted Latinos, that was enacted solely by white voters with African American, Asian American, and Latino voters against it. We saw a similar pattern Two years later, in Proposition 209, the targeted affirmative action, again, something that benefited the African American and Latino population and in particular, the Latino population in California is similar split with African American, Asian American Latino voters against but a very controversial law, also championed by Pete Wilson, enacted by white voters.

On the surface, that's a recipe for racial division, serious conflict. We didn't have it in California, instead, what we have today is all communities, including white Californians, who by and large oppose what Donald Trump is about doing and recognize that we are all in this together and that all of these communities need to work together.

We could have seen a change in California totally driven by the Latino community, the Asian American community, both growing immigrant communities, and the African American community that left out whites. That might have been what would have been expected, given the racial division in the vote, but we didn't have it. Instead, what we have today is a much more united California, with all groups really believing that we work together and that we oppose those like Donald Trump, who would seek to divide us.

Of course, California still has work to do in ensuring that all children have similar opportunities in education, that immigrants have equal access to all of the government vehicles that enable us as a democracy to collectively choose our course. We obviously have to address an anti-immigrant federal government under Donald Trump and the effects that that has, even in a state with progressive laws like California.

Our challenge even in California is not over the Latino community, in particular. As President and General Counsel of MALDEF today, I know that our Latino community does not have the representation that it should have in leadership in the corporate sector, in the higher education sector, in the media sector, where we still see the highest level of under-representation and exclusion when you compare population to presence on screen for the Latino community.

We have challenges in California. We have challenges for the Latino community here and beyond, but the progress that's been made as a result of what began with the enactment of Proposition 187 and the reaction to it, the strong, strong reaction to continuing to be involved, to increasing involvement, to seeking to change the state, really is a shining example, not just for those of us in California today who still face challenges, but for those throughout the nation who are facing unprecedented levels of fear, inspired by anti-immigrant lies and rhetoric coming from the White House.

- Written by: Pilar Marrero, Portrait by: Ricardo Palavecino

Find more firsthand accounts of the campaign against Prop 187 here.

In 1994, when Proposition 187 was on the ballot, Thomas A. Saenz was a Southern California-born young attorney, who had just been hired by the Mexican American Legal Defense and Educational Fund (MALDEF) after graduating summa cum laude from Yale University and having clerked for two federal judges.

Antonia Hernández, who was then the President and General Counsel of MALDEF, knew that Saenz could take any high-powered job he wanted in the legal profession, but she decided to offer him a job anyway. That was in 1993.

“He is one of the most brilliant lawyers I have ever met, and he could have taken any job. At that time, all I could offer him was 30,000 dollars,” she remembers today. “He said yes, and that was the beginning of the legal legend of Tom Saenz.”

For Saenz, looking back today on his career, it was a no-brainer. “It was really my dream when I went to law school — to work at MALDEF and pursue a career as a civil rights attorney working on behalf of the Latino community.”

Working on the campaign against Proposition 187 and the legal challenges that ended up stopping the anti-immigrant law was an important learning experience for Saenz. He did everything, from debating the proponents in public settings to helping devise, write and argue the lawsuits that ended up stopping the implementation of the initiative, which passed in November of 1994.

If ever there was a moment in California history that could test an attorney interested in defending the civil rights of Latinos, 1994 was it. It actually was just the beginning. Twenty-six years later, Saenz is the President and General Counsel of MALDEF, and he is still doing the work that he dreamed of doing as a young attorney.

One of the first surprises for Saenz, as he tells the story today, was that the 187 proponents he debated in countless events during that year were relying on a nativist conspiracy theory to push the initiative forward.

“The argument was that we needed to send a message from the state of California to the federal government in order to prevent Mexico and Mexican Americans from taking back the Southwest of the United States,” he remembers. “It really astounded me that such an obvious fallacious rumor would be a centerpiece for those who were arguing to vote yes on 187.”

This was not consistent with Saenz’s training about what public policymaking was about. Sadly, it's a political tactic that persists until today, and it's often successful, he added in a recent interview. 

As he argued against 187, Saenz was participating and collaborating among lawyers at different organizations and levels of experiences in strategy and preparation for the lawsuits that would be filed against the initiative. Because the law at the time in California mandated that initiatives would take effect the day after the election, the civil rights groups had to be ready to file and argue that same day.

And so they did. A coalition of groups that included the American Civil Liberties Union of Southern California, MALDEF and others ended up in front of federal Chief Judge Matthew Byrne, ready to argue the case against 187. The proposition had overwhelmingly won with 59% of the vote but lost 3 to 1 among Latinos and lost among African Americans and Asian Americans as well.

ACLU's Mark Rosenbaum, then an experienced lawyer, was ready to present the case against 187 based on preemption and federal supremacy, but the judge sent word that he was "intrigued" by procedural due process, another argument that young attorney Thomas A. Saenz had actually been tasked with writing.

“I was nervous because I had not prepared for the argument, but when Rosenbaum turned and asked me if I would do it, my boss Antonia Hernández was sitting next to me, so I really had no choice but to say yes to doing it in front of all those legal luminaries,” Saenz recalls. "Fortunately, I didn't stumble too much, and it happened quickly, but today I view that as one of the greatest opportunities of my career.”

Judge Byrne granted an injunction that stopped most of 187 from taking effect, and Saenz remembers it as a moment of "relief and calm" for the community because "prior to that, there were rampant fears" in the community.  Proposition 187 effectively ended in 1999 when the new governor Gray Davis reached a settlement with the plaintiffs through a mediation process.

In 1996, Saenz became Los Angeles Regional Counsel of MALDEF, in 2000, National Senior Counsel and Vice-President of Litigation in 2001. He taught Civil Rights Litigation as an adjunct professor at USC for several years, and in August of 2005, he became counsel to Los Angeles Mayor Antonio Villaraigosa.

Saenz came back to MALDEF in 2009 as President and General Counsel, the position that Hernández originally held when she hired the then young and brilliant attorney.

He is still in that position, where he continues to lead the charge on Latino civil rights in the areas of education, employment, immigrant rights, voting rights and access to justice.

 

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