Rick Perry defended his support for Texas’s in-state-tuition policy for illegal aliens in last night’s Republican debate: “If you say that we should not educate children who come into our state for no other reason than that they’ve been brought there through no fault of their own, I don’t think you have a heart.”
Perry is right: There are compelling humanitarian arguments for treating illegal minors who did not themselves choose to break the law with far greater leniency than the parents who brought them into the country illegally. How to deal with them is the thorniest problem resulting from our broken borders. But hard cases can make bad law. Giving illegal youth de facto legal status is deeply unfair to those immigrant parents and their children who obeyed the law. And once you start handing out amnesties, you inevitably create more incentives for illegal entry. Moreover, allowing illegal students full access to Texas’s university system while making them pay out-of-state tuition like every other non-legal resident of Texas — such as citizens from Arkansas or Oklahoma — hardly constitutes a denial of education, as Perry implies.
Perry justified Texas’s mini-amnesty on federalism grounds: “This was a state issue. Texas voted on it.”
That might be a minimally colorable argument but for a little problem: Federal law explicitly forbids just what Texas did. “An alien who is not lawfully present in the United States,” declares Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), “shall not be eligible on the basis of residence within a State . . . for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.”
Notwithstanding this federal ban on in-state illegal-alien tuition policies, neither the Bush nor Obama administration has ever objected to such policies on supremacy-clause grounds. Even without this legislative ban, in-state tuition is far more intrusive a grab of federal lawmaking power than Arizona’s maligned SB 1070 (which officially authorizes the state’s police officers to check the immigration status of people they stop on legitimate law-enforcement grounds and whom they reasonably suspect of being in the country illegally). SB 1070 merely enforces existing federal laws. Texas’s law not only contradicts federal law, it creates precisely the patchwork of conflicting state immigration policies (i.e., amnesties in some states, not in others) which the supremacy clause is supposed to prevent.
The Texas attorney general’s effort to justify the state’s amnesty in the face of IIRIRA’s Section 505 almost laughably dodges the preemption issue with the meager argument that the “terms ‘postsecondary education benefit’ and ‘residence’ are not defined in the federal law.” His desperate defense is a reminder that once you start justifying law-breaking, however ostensibly compassionate your intentions (and one needs to ask here what position pro-amnesty Republicans would take on illegal immigration if they weren’t eager to court the Hispanic vote), you are led into further and further betrayals of the rule of law.
I love when people argue: "That's against the law!" And then quote some statute. Clearly not a lawyer.
Not to mention, whom a STATE university charges any particular tuition rate is clearly the state's business alone. The university system is not an enforcer of the immigration code, nor should it be. If Texas tax payers, many of whom are Tejanos, want to treat all state residents the same they should be able to.
Reply to this commentLinkReport AbuseCould an enterprising resident of another state enroll in a Texas state university and demand in-state tuition, citing IIRIRA? Seems to me that either Texas is illegally granting in-state tuition to illegal aliens while excluding out-of-state students, or Texas's policy has made subsidized tuition to Texas universities available to all U.S. citizens, regardless of their state of residence.
Reply to this commentLinkReport AbuseWhat I always find interesting in the discussion of this issue is most politicians favor granting in-state tuition rates to the dependents of illegal immigrants based on the argument it's not their fault, I understand the argument so where are the politicians at the federal and state level willing to extend the same "right" to the children of military members who are not "legal residents" of the state and grant them the same in-state tuition rates? About 10 years ago both of my sons were made to pay out of state tuition rates at their schools because due to my service my legal residence was in another state. If it's been changed in most states then I'll withdraw my criticism but I somehow doubt it.
Reply to this commentLinkReport AbuseI usually enjoy your articles Ms. McDonald but this particular one is hard to take.
We have a Federal government suing States trying to enforce a law the Feds refuse to enforce.
We have a Federal government who is not deporting illegals unless they commit crimes.
We have various State governments setting up sanctuary cities with no interference from the Federal government.
If Texas is breaking a Federal law for in-state tuition, why isn't the Federal government suing Texas? Or for that matter, doesn't CA and MD also have this same law?
We both know the answer because the Feds approve.
I would be up in arms if my state decided to go the in-state tuition route but if everyone but four legislators in Texas agreed to approve this, State Rights wins the day. I don't live there, I don't walk in their shoes. If they feel they need this, it is their decision, not mine.
I also find this statement of yours - "(and one needs to ask here what position pro-amnesty Republicans would take on illegal immigration if they weren’t eager to court the Hispanic vote), you are led into further and further betrayals of the rule of law." very disingenuous since this is ALL the Dems do, ALL the time.
Reply to this commentLinkReport AbuseI'm not sure I get your concern here. Texas residents receive in-state tuition benefits. Children who are brought over illegally but who reside in Texas also receive in-state tuition benefits in Texas.
Children who are brought over illegally, but who reside in New Mexico do not receive in-state tuition benefits from Texas. In no way is the state giving benefits to the children of illegal immigrants that it is not giving to the children of legal residents.
In any case, this seems to me to be one area where Perry has it right and the right-wing has it wrong.
Reply to this commentLinkReport AbuseRight on!
Reply to this commentLinkReport AbuseI have resided in Texas for 10 years. During that time, my daughter moved here, living in my house or her own apartment, while she attended the University of Texas, eventually receiving her Ph.D. During that entire period (almost six years), she was required to pay out of state tuition rates, since she had not lived in Texas before she applied for admission. As I was a resident, and she became one within months of moving here , we both paid taxes and voted here in Texas and, as a result of this misbegotten policy, we both helped to pay for illegal aliens to attend UT at in-state rates. As each year passed, it became obvious that, no matter how long she lived and voted here, she would never be considered an in-state resident for UT's purposes. Re the other comments, she was a Texas resident for everything except tuition--not a resident of some other state. Believe me, in addition to it being illegal, this is infuriating. Moreover, it seems worth considering the incentive effects on those who might be contemplating illegally entering this country. I doubt that there are large mobs heading to the border just with this in mind, but do we need to ADD more impetus to the already large problem?
Reply to this commentLinkReport AbuseParents are often willing to die so that their children might live, or live better. Rewarding the child because the decision was made by his parents just encourages more parents to make the same illegal decisions. The reward has to be taken away, not because the child is culpable for his parents' choices, but because that removes a motivation for the parents to make those choices.
Reply to this commentLinkReport AbuseOdd that the author of this little diddie never once mentioned that at least four other states, Utah, Washington, New Mexico and Oklahoma, all give in-state tuition to the children of illegals, and another state's legislature just passed a bill to do the same thing.
Nor did you, rimfrel, bother to do just a simple bit of research that would have shown you that most illegals are young (under 35), male and unmarried. Are we to assume that they are sneaking across our borders just to guarantee in-state tuition for their children not yet born? That is pure stupidity.
And if in-state tuition is such a draw, why then does California and Arizona, who do not give in-state tuition, have a higher percentage of illegals than Utah, Washington and Oklahoma, who do?
Reply to this commentLinkReport AbuseHeather Mac Donald gets a conscience!
She's the woman who once wrote:
"Until street colonists learn to obey even the most minimal rules for decent conduct, they cannot expect to hold a job or an apartment."
External Link
Duh. No kidding they can't expect to! Ever deal with homeless people? They are not like you and me. They are profoundly messed up. Profoundly. Not just the ones who rock back and forth, talk to themselves or scream at passers-by, smell awful or soil themselves. Even the ones who present themselves as just dissolute alcoholics or drug addicts. We are not talking character flaws. These people really, really -- REALLY -- can't take care of themselves. A conservative's nightmare -- someone who simply doesn't have what it takes to have any personal responsibility.
Reply to this commentLinkReport AbuseI must agree with Gov Perry on this issue. Don't get me wrong, I am not for illegal immigration. But when the federal government refuses to close the boarder, does not inforce immigration laws and sues states for trying to enforce them.....What options are left? The federal government has made federal law useless....to me that does make this a humanitarian issue forced on the states BY THE FEDERAL GOVERNMENT! So I cut Gov Perry a break on the way Texas is governed.
As president, I am sure he will govern in a different way. To assume he will do otherwise is just politics.
Reply to this commentLinkReport AbuseTexas doesn't give illegals access to college based on residence, they do it based on attendance in, and graduation from, high school. California used the same words, and a federal court has found their law valid and not a violation of federal statute.
There's a lot not to like about Perry, I guess, but you guys should get one of your legal people to review your legal comments for you.
Reply to this commentLinkReport AbuseThe same federal court system that worsened our illegal immigration problem via its misinterpretation of the 14th Amendment back in the early 1980s? Fan-freaking-tastic.
Reply to this commentLinkReport Abuse"That might be a minimally colorable argument but for a little problem: Federal law explicitly forbids just what Texas did."
The California Supreme Court seems to not quite agree with you:
Robert MARTINEZ et al., Plaintiffs
and Appellants,
v.
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA et al., Defendants
and Respondents.
No. S167791.
Supreme Court of California.
Nov. 15, 2010.
External Link
Reply to this commentLinkReport AbuseThat would be a stronger argument if we weren't talking about the Supreme Court of California.
Reply to this commentLinkReport AbuseWe have a foreign student living with us. She has been here four years, and because she is here legally, scrupulously doing what she must to stay "in status," her tuition at a public Cal State university is more than three times what residents pay. (Should the California Dream Act pass, not only will illegal aliens qualify for in-state tuition, but another part of the proposed law entitles them to state-funded financial aid.) Meanwhile the law says foreign students are ineligible for in-state tuition, let alone financial aid. To allow illegal aliens to have in-state tuition benefits is to not only penalize those who are here legally, it actually incentivizes going out of status, to become illegal! Don't renew your visa and your tuition bill drops 70 percent (and you might get a scholarship to boot!) Is this the utopia we want to create?
Reply to this commentLinkReport AbuseCharles,
I would assume that illegal alien children from Ohio would not be eligible for in-state tuition at Texas colleges and universities. Saying that Texas doesn't give illegals access to college based on residence, they do it based on attendance in, and graduation from, high school is a way to get around saying that illegal aliens residing in Texas qualify for in-state tuition.
Reply to this commentLinkReport AbuseWe should also bear in mind that we are not really talking about children here. Most college age students are adults and there is no right to post-secondary education at taxpayer cost.
As far as I know, you are incorrect in stating that a federal court found the law valid. It was the California State Supreme Court
Mr. Williams,
You state, "There are compelling humanitarian arguments for treating illegal minors who did not themselves choose to break the law with far greater leniency than the parents who brought them into the country illegally."
As far as I know, illegal aliens residing in Texas are not prevented from attending state colleges and universities. I would also assume that they attend Texas public schools K-12 without paying tuition. The issue is whether those illegally in the U.S. are entitled for a subsidy for post-secondary education. Does "leniency" extend to educational subsidies for adults who are illegally in the U.S?
Would it also be proper for my children to get in-state tuition at Texas school despite the fact that they reside outside Texas? After all, it's not their fault that their idiotic father is compelling them to live in New Jersey. Governor Perry, my children should not suffer because of the errors of their parents. Please be lenient with my children!
Reply to this commentLinkReport AbuseI could be wrong, but I have suspected for a while now that Heather Mac Donald is more interested in being the smartest person in the room than she is about any of the issues she weighs in on.
Frankly, I am not interested in the views of those who make it their sole interest to inspect the jots and tittles of the people who are speaking with real heart and conviction on the issues.
Reply to this commentLinkReport AbuseThe only people Perry has compassion for are illegals. He loves them because he is the quintessential cheap labor conservative. If he could get them to work for a dollar an hour, he would worship them. If they were free, he would die and go to heaven for them.
Of course, he doesn't want them to vote. Perry pushed rather hard for a voted ID law.
Cheap labor, no votes. Compassionate conservatism.
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