Don’t Hold Your Breath for DOJ to Sue

by Mark Krikorian

Sometime NRO-nik Hans von Spakovsky and his Heritage Foundation colleague Charles Stimson write in the Examiner today on how “States are violating federal law to benefit illegals.” Their piece (based on a recent Heritage paper) lays out how a dozen states are brazenly violating federal law by giving illegal-alien students in-state tuition rates without also extending those discount to American and legal-immigrant students from other states. Note that the 1996 federal immigration law did not “heartlessly” prohibit states from giving illegal immigrants in-state tuition subsidies — rather, it said that if states choose to do that, out-of-state Americans needed to get the same discounts. As I’ve noted with regard to California, some states have tried what the authors call “legal chicanery” — federal law refers to discounts “on the basis of residence within the State,” so states have worded their in-state tuition laws on the basis of high school attendance rather than residence. But, since admission to school is based on residence, this wording is “clearly enacted to evade federal statutory or constitutional requirements,” as the authors put it, something which the Supreme Court has repeatedly struck down in other contexts.

But the Supreme Court hasn’t had a chance to rule because at least one court has ruled there’s no private right of action here — the lawsuits by out-of-state college students have gotten nowhere — and because the Justice Department won’t sue these scofflaw states. I guess it’s too busy suing states that are trying to enforce federal law to act against those breaking federal law.

And then there’s the policy rationale for the federal law. As von Spakovsky and Stimson write:

These state laws not only violate federal law, they force citizens to pay increased tuition since the burden of paying for the illegal alien beneficiaries is passed along to other students.

It is fundamentally unfair to make citizen students from out-of-state, as well as in-state taxpayers, subsidize the education of illegal aliens. It also provides an additional financial incentive to enter this country illegally. An August 2011 Rasmussen poll showed that 81 percent of voters oppose giving illegal aliens such benefits.

It’s true that in-state tuition subsidies don’t amount to a large sum, given the magnitude of government spending, but that’s not the issue. Subsidizing illegal aliens is, you know, wrong. If you want the young people in question, if they were brought here as very young children, to be given legal status, then argue for some kind of amnesty for them — as I have done repeatedly — rather than trying to split the baby by opposing amnesty but supporting taxpayer subsidies for them

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