There are aspects to the Welfare Reform Bill that, as just a matter of policy, I disagree with and I think could pose very serious problems, and although I do think the bill does some good, in the end I believe it does more harm than good.
But actually, what I would like to discuss, at least in terms of the remarks I prepared, is the area in which the Welfare Reform Bill raises serious constitutional questions.
Most of the obligations of the Welfare Bill really don't begin to affect the city of New York, the state of New York, and other cities and states until two, three, or four years from now, some of the most onerous obligation five years from now --- all have substantial problems attached to them but there is time to correct them if in fact the Congress wants to correct them.
But there is one aspect of the bill that has immediate application, and one that I believe raises serious constitutional and legal questions. And it is part of the Bill people pay very little attention to, and I'm not certain many knew it was in the bill when they passed it. It's a provision that attempts to reverse an executive order that New York City has had in existence since 1988 which basically says that New York City will create a zone of protection for illegal and undocumented immigrants who are seeking the protection of the police or seeking medical services because they are sick or attempting to or actually putting their children in public schools so they can be educated.
New York City's Executive Order 124, signed by Mayor Koch in 1988 protected people in that endeavor by instructing employees of New York City that they are not to turn in those names into the Immigration and Naturalization Service. That has been the source of great debate from the time Mayor Koch signed it until now. There has been at least three or four attempts by Congress to reverse that executive order.
I'm sure many of you may not remember this, but because I was intimately involved with it I remember it very well. In one of the late versions of the crime bill there was an amendment and the purpose of this amendment was to say that if any city wanted to benefit from the proceeds of the crime bill or money coming from the crime bill, they could not have an executive order like Executive Order 124; they would have to reverse it.
In fact, that same year, as part of an education bill in which education funds were being distributed to the various states throughout the country there was a provision included in it that said if you did anything like Executive Order 124 and give this kind of protection you would be deprived of funds for education and, due to very strong lobbying efforts, I'm delighted to say these provisions were defeated in the past.
These provisions were akin to the Welfare Bill and I don't think anyone has really focused on that. Unlike the other provisions of the Welfare Bill that involve mandated welfare, that involve deprivation of benefits, or that create mandates that aren't funded, this is not something that goes into effect two years from now of three years from now, -- it goes into effect immediately.
So the question is posed -- What do you do about it, do you revoke Executive Order 124? It is my conclusion and Corporation Counsel's conclusion that this raises such serious constitutional questions that we will challenge it in court.
Let me explain to you some of the theories we will use in challenging it. Since the very beginning of constitutional government, the constitution has really been the supreme law of the land and all of the branches of the government have to abide by it.
So the constitutional question raised by section 434 of the Welfare Bill is what's the division of authority between the federal government and the state governments and their local subdivisions and interestingly this involves the tenth amendment that has been rarely interpreted and has recently been politically debated very heavily.
The tenth amendment reads: "The power not delegated to the United States by the Constitution not prohibited by it to the States is reserved to the States respectively or to the people."
So what the Constitution says is unless a power is given to the national government, to the federal government, and unless you define those powers in the enumerated powers of the federal government, those powers are retained for the states for their local subdivisions and for the people.
Elastic power retained by local government is the police power. In fact, It's based on a defense of the Constitution that the framers determined not to grant a police power to the federal government and the police power they determined should be retained by state and local authorities. The police power is much more broadly intended and interpreted than the power to police and protect people against obvious forms of crime. The police power is the power to provide for the health, the safety and the well-being of people in the community.
It's been the Supreme Court's understanding of the Constitution that whether it's the police power or other areas in which the states retain a significant measure of sovereign authority, that it is quite clear that the right to make determinations about health, about safety, about the enforcement of the law as it related to health and safety has been retained by state and local governments and not given to the federal government. In a case recently decided by the Supreme Court, New York vs. United States, the Court reiterates this point that the states maintain powers in their own right.
An example of that power is the ability of a municipal government's right to determine the policies that are necessary to protect public health, and public safety. The most obvious way a municipal government does this is by passing laws and by issuing executive orders.
Executive Order 124 was implemented for this exact purpose of providing for the health and well being of the citizens of New York. The order was issued under the administration of Mayor Koch, reiterated by my predecessor Mayor Dinkins, and reiterated by me after I became Mayor. What the order does is to protect undocumented and illegal aliens who are seeking to use city services that are necessary for their health and safety, such as them seeking to use a hospital because they're sick and contagious, seeking to use the services of the police because they've been victimized by crime and possibly fear they'll be victimized again, or seeking to use the public schools to educated their children. It certainly concerns their health and safety, but the broader impact is this is a very thoughtful policy and clearly an exercise of the police power that a Mayor possesses, because it also protects the health and safety of all the citizens of the city other than illegal and undocumented aliens.
Think about it for a moment, in a city as large as New York we have a very large undocumented and illegal population -- 400,000 people or more from a total of 7.5 million. So now, if you don't create an area of protection for those 400,000 people to report when they are victimized then not only do you increase the risk they'll be victimized again but that next time the mugger seeks to victimize someone they might not be an illegal or undocumented immigrant. Because when a mugger seeks to victimize someone they won't ask for a green card, -- muggers don't get involved in those distinctions between legal resident, immigrant or illegals. If you say to people you are going to pay a very heavy penalty by reporting to the police crimes that are committed against you, you deprive the police of significant information they could use to catch criminals. And when you're talking about as many people as we're talking about that's a significant part in which the police enforce the law and protect all citizens.
In some communities in New York City there's a heavy amount of drug dealing and some of the drug dealing occurs between citizens, some of it occurs between legal resident aliens, and some between illegal and undocumented illegals. The police rely on the information they obtain from a broad range of people including illegal and undocumented immigrants who can catch those drug dealers and put them in prison. When you deprive the police of that information you have a serious effect on the police who are trying to protect public health and public safety.
Similarly, if you say to people we're not going to give you a zone of protection when you're sick and seeking treatment in a hospital, in effect, we're saying we're going to put you at peril and you'll be deported or expelled if you seek treatment. Significant numbers of people will, therefore, not seek treatment and many of them may have diseases that might have implications for others. So you're not only putting in peril those lives of undocumented and illegal immigrants but also the lives of the entire city of New York.
So when Mayor Koch signed this order and Mayor Dinkins and I reiterated it, it was clearly and directly an implication of police power of the city and of the state whose purpose is to protect all of those of the city.
The very best example of this and the broadest is children who are seeking a public school education. The best estimates say we have somewhere between 40,000 and 70,000 children who are illegal and undocumented immigrants in our public schools. But not everyone of these children are illegal and undocumented because many have been born in the United States of parents who are illegal and undocumented. Under the 14th amendment they would be citizens of the United States.
In any event Executive Order 124 seeks to protect them by saying to their parents we are not going to report your immigration status to the I.N.S. The reason that this is done is to make certain that children are in school rather than hidden in apartments during the day.
Whether people agree or not that this is the best policy or solution for these immigrants, it certainly is the best policy for the rest of society. Because when forty to seventy thousand children aren't in school this poses significant health and safety risks for the rest of society. Again, that area of Executive Order 124 was intended to protect parents and children in using public schools so they could have a place to have their children educated.
Let me see if I can explain to you how this particular provision, section 434 of the Welfare Act, is particularly designed to revoke Executive Order 124. As I've said this has long been debated in Congress and there have been at least two other attempts to revoke the order both of which have been defeated, and this section that was inserted into the Welfare Bill unfortunately makes it pretty clear in its language that it is intended to revoke Executive Order 124. Section 434 says that a state and its political subdivisions are prevented from directly or indirectly instructing their employees with regard to the reporting of illegal and undocumented immigrants.
So essentially what it says is that it revokes the advice given in Executive Order 124. We should have to leave the police, the health care employees, the teachers and administrators of schools, without advice as to what they should do. It doesn't tell us that we have to instruct them to report it but it tells us we cannot instruct them not to report the information. So we have to give them no advice. In a small city of two hundred employees that might work, but in New York City where there is a potential who would all be applying this advice, tragically what would happen is that some would ask and some would not ask, some would report, and some would not report.
But the illegal and undocumented person who used this service would not know whether they would or would not be asked. The illegal and undocumented parent seeking to put their child in school would not know if a teacher would report them to the I.N.S. or not. So it would have precisely the impact the order was intended to avoid. It would make illegal and undocumented immigrants wary of contact with the government for basic services they need to protect themselves as well as the rest of the population.
The reality is in a city as large as New York that some teachers would ask and some and some would not, some police would ask and some would not, all would have a legitimate right to ask because its a legitimate question. We believe that although this appears to be an exercise on the part of Congress to control and regulate immigration there are at least three Constitutional arguments that can be made against it which I'm hopeful will prevail.
One is that it's a direct interference with police power exercised in the way in which I described; the other is that it is in essence a clash of two different powers that are granted in the Constitution. The Constitution does grant Congress the power to regulate immigration, however, it also clearly reserves to the states the power to provide for police protection of public safety and public health and here, in fact, this is not really an attempt to control or regulate immigration.
Interestingly, when this executive order was passed I was a U.S. Attorney in New York City so when Mayor Koch signed this executive order saying we're not going to give the federal government information in these categories I would have had every right to be angry about it in that he was interfering with what we were doing. But I supported what he did because I knew there was other information I needed more than that.
If we have 400,000 illegal and undocumented immigrants in New York City last year the federal government only deported about 1,200 people. With all the federal reforms of immigration and all the additional resources the federal government promises, if you assume the most optimistic results would be that deportation by the federal government would be doubled or tripled. Let's suppose the numbers of deportations tripled that would mean three to four thousand deportations a year, remember, we have a population of 400,000 undocumented and illegal immigrants. What that means for the reality of life for all of us is that those people will remain here and stay here.
The question is what's the best thing to do about that? Put them in a situation in which they keep children out of school, put them in a situation in which they don't go to hospitals, or put them in a situation in which they don't report crimes to the police, or do we put them in a position to take advantage of these very basic services which protect them as well as protect the health and safety of the rest of the population.
What we say is that both the constitutional theory and the political arguments that've been made by the Republican Congress and the Democratic President is that the local government makes the best decision about the needs of their citizens, and that we should be returning power and discretion to local government. This argues in favor of the police power when it is appropriately and responsibly exercised. In fact, what the federal government is doing is not controlling immigration but what it's trying to do is usurp police power and exercise it in the way they would have it be exercised.
I'll give you another example of how, in practicality, this won't be an exercise that will control immigration in any meaningful sense. Right now in New York City prisons there are approximately 2,500 people who are illegal and undocumented. In a given year about 4,000 illegal and undocumented immigrants go through the New York City jail system with the potential of 70,000 people each year whose names come to our attention who have allegedly committed crimes or who have been convicted of committing crimes. None of them are protected by Executive Order 124. Those names should be turned over to the Immigration and Naturalization Service and they have been for at least the last decade. There are literally thousands upon thousands of names the I.N.S. could work on and usefully deport from the United States, which they're not going to do, either with present resources or what they're promising to do with all their reform measures, and actually only three hundred people that were convicted of serious felonies by the federal government were deported.
So it seems to us that this is another "not-real" attempt to control immigration in a useful way but rather it creates a sense of fear and disincentives because the reality is that all the names if we're required to turn them in will just be added to a very big pile. The overwhelming majority of people will face a type of Russian roulette where some will be deported and some won't. So you create this catastrophic setting but in no way are you affecting the number of people, at least the present population of illegal and undocumented immigrants that are here.
It seems to me, and this may now be more of a policy argument than a legal argument, the better thing to do if you want to have an impact on this population is to increase your resources dramatically to deal with the people who are illegal and undocumented who have committed crimes. After you've dealt with that effectively then you can start moving on if you want to, I don't think you should, but you could then move on to parents of children going to school, to people who are sick and want to go to the hospital, to people who are beaten up and want to report that to the police.
Finally, beyond the Tenth Amendment argument which I think is an interesting one that hopefully will prevail, although illegal and undocumented immigrants are in this ambiguous status as to precisely what protections they have under the United States Constitution, once people are physically present in the United States as people... persons, they're protected by the Fifth Amendment due process clause against invidious discrimination by the federal government and they're also protected under the Fourteenth Amendment due process and equal protection clause against discrimination and against denial of equal protection. What we're talking about here are basic fundamental services that are being offered to people.
You could also argue that the inclusion of section 434 constitutes indecent or inhumane treatment. Think of a situation where someone is illegal and undocumented and being subjected to domestic violence which is an ongoing situation, a situation in which you are victimized continuously until you take action. A person in that situation would have to make a choice between reporting to the police and running the risk of possibly being deported or staying in a situation in which they are being repeatedly victimized.
So this is an interesting challenge and an interesting legal issue, but it's allot more. There's a very practical choice that I have had to make along with Corporation Counsel, and that is that we will not implement this law and we will challenge it as a violation of the Tenth Amendment and a violation of due process and between now and that time as many other violations we can figure out. I should emphasize to you I discussed this provision with several members of Congress and this is not meant as any sort of criticism, but I'm quite sure that many didn't know they were voting for this, they knew the pros and cons of the Welfare Bill, but almost none of these Congressmen knew this provision, section 434, was there and it is this provision that'll have the most immediate impact. I believe this provision has a good chance of being overturned by the Court because it's unconstitutional, and I hope we prevail.