The Corner

Rick Perry, In-State Tuition, and Federal Law

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. 

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