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Providing In-State Tuition for Illegal Aliens: A Violation of Federal Law

Federal law prohibits state colleges and universities 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. Today, 12 states are circumventing this federal law, and the legal arguments offered to justify such actions are untenable, no matter what other policy arguments are offered in their defense. Because at least one federal court of appeals has held that there is no private right of action under the specific statute in question—§ 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996—the U.S. Department of Justice must enforce this statutory provision against states that have violated federal law. Yet even as it sues states like Arizona and Alabama for trying to assist the enforcement of federal immigration law, the U.S. government refuses to sue states that are incontrovertibly and brazenly violating an unambiguous federal immigration law. Such inaction is unacceptable: The President and the Attorney General have an obligation to enforce every provision of the United State’s comprehensive federal immigration regulations—including the federal law prohibiting state colleges and universities from providing in-state tuition rates to illegal aliens “on the basis of residence within the State.”

In 1996, Congress passed—and President Bill Clinton signed into law—the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).[i] Section 505, codified at 8 U.S.C. § 1623, prohibits state colleges and universities 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.[ii] Today, 12 states[iii] allow individuals who are in the United States illegally to pay the same in-state tuition rates as legal residents of the states[iv]—without providing the same rates to others. 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.

A Nation of Laws, Not of Men

The United States is a country of immigrants—men and women who sought opportunity and freedom in an exceptional new land. 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.

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