Illegal Aliens, In-State Tuition and the Law

Mike Brownfield The Foundry Heritage.org

Consider it an illegal fringe benefit for illegal aliens. Today, 12 states allow individuals who are in the United States illegally to pay the same in-state tuition rates as legal residents of the state without providing the same rates to others in the country who are here legally. And those states are doing it in direct contravention of federal law.

In a new paper, Heritage’s Hans von Spakovsky and Charles Stimson explain that in 1996, Congress passed–and President Bill Clinton signed into law–the Illegal Immigration Reform and Immigrant Responsibility Act. Under Section 1623 of the law, state colleges and universities are prohibited from providing in-state tuition rates to illegal aliens “on the basis of residence within the State” unless the same in-state rates are offered to all citizens of the United States.

“By circumventing the requirements of § 1623 these states are violating federal law, and the legal arguments offered to justify such actions are untenable, no matter what other policy arguments are offered in their defense,” von Spakovsky and Stimson write. Which states are on the list? The offenders include California, Texas, New York, Utah, Washington, Oklahoma, Illinois, Kansas, New Mexico, Nebraska, Maryland, and Connecticut.

Despite these violations, the federal government is doing nothing about it, all while the Justice Department has brought action against Arizona and Alabama for assisting in the enforcement of federal immigration law. Meanwhile, President Obama’s U.S. Immigration and Customs Enforcement department announced over the summer relaxed standards for pursuing and dismissing immigration cases.

Apart from being illegal, granting in-state tuition to illegal aliens isn’t at all popular with the American people, either. A poll conducted in August shows that 81 percent of voters oppose providing in-state tuition rates to illegal aliens–and with good reason. For starters, the cost of doing so is breaking an already strained bank. In 2005, the cost of providing in-state tuition in California was between $222.6 million and $289.3 million; in Texas, it was estimated between $80.2 million and $104.4 million. Von Spakovsky and Stimson note that the policy has other serious flaws, as well:

Granting financial preference to illegal aliens also discriminates against otherwise qualified citizen students from outside the state. Furthermore, states that offer in-state tuition to illegal aliens act as a magnet for more illegal aliens to come to the state. Arguments to the contrary are unpersuasive, and not supported by the facts.

The core issue, though, is the Constitution and the rule of law. And while the United States welcomes immigrants, it is also a country of laws, and there are limits imposed on those who seek citizenship. States cannot cast aside those laws where they see fit, as von Spakovsky and Stimson explain:

Americans take pride in their heritage and this country’s generous policies regarding legal immigration. Yet, as citizens of a sovereign nation, Americans retain the right to decide who can and cannot enter this country—and what terms immigrants and visitors must accept as a condition of residing in the United States. As mandated by the U.S. Constitution, Congress sets America’s immigration policy. State officials have considerable influence in Congress over the crafting of immigration laws, and they may take steps to help enforce federal law. However, state officials cannot act contrary to a congressional statute.

The Supreme Court has held that “The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.”

Unfortunately, in offering illegal aliens in-state tuition in violation of federal law, that is exactly what these states are doing. Now it is up to the President and the Attorney General to enforce that law and take action against these 12 states.