Constitution Check: Is tuition aid for children of illegal immigrants unconstitutional?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects.  Today’s topic: lower college tuition rates for students living illegally in the U.S.

The statements at issue:

“People are very upset across Iowa about illegal immigration,” [Michele Bachmann] told reporters after her speech.  “People have asked me about it at every stop I’ve gone to.  The governor of Texas has brought this issue up and was proud of the fact of offering in-state tuition credits to illegal aliens.’’  During her speech, she told the audience, about 60 people, that the law Mr. Perry signed allowing children of undocumented families who graduated from a Texas high school to attend a state college on in-state tuition violated a 1996 federal law.

Remarks by GOP presidential candidate Bachmann during and after a political rally in the small town of Perry, Iowa, on October 15, reported in The Caucus.   The full text of her remarks is not available.

We checked the Constitution, and…

Michele Bachmann (Wikimedia Commons photo by G. Skidmore)

Candidate Bachmann was making a constitutional argument that has become familiar among critics of U.S. immigration policy and that is now figuring importantly in the campaign for the Republican nomination for the presidency.   When the point is made that a state law violates a federal law, as Ms. Bachmann did, it means that the state law is barred by the Constitution’s Supremacy Clause (in Article VI), which makes federal law paramount over a conflicting state law.  The problem with the argument, though, is that, so far, the courts are not accepting it.

Texas, under Gov. Rick Perry’s leadership, in 2001 became one of the first states to allow children of undocumented aliens to pay only in-state tuition rates to attend Texas colleges; nine other states now have similar laws. Typically, state colleges and universities charge higher tuition rates to students who come from other states.  Under the alien student laws, those who have attended high school in the state get the benefit of lower tuitions.

The constitutional argument against those laws is that they contradict two federal laws, passed separately by Congress in 1996 as part of a broad new immigration-control law.  One provision,  Section 1621, bars a non-citizen living illegally in the U.S. from receiving any state or local government benefit, unless a state passes a law explicitly allowing it.  The other provision, Section 1623(a), explicitly bars a tuition benefit for an undocumented alien student, unless the same lowered rate is made available to U.S. citizens who live in other states but go to college in that state.

Gov. Jerry Brown just last week signed into law a measure to provide state financial aid to undocumented alien students going to college in the state.

Nearly every year for the past decade, efforts have been made in Congress to repeal those restrictions, but the repeal bills have failed.   In the meantime, the states have chosen to go their own way.  In California, in fact, Gov. Jerry Brown just last week signed into law a measure to provide state financial aid to undocumented alien students going to college in the state, going beyond that state’s 2001 law making those students eligible to pay lower tuition rates.

The California 2001 law on lower tuition was challenged as unconstitutional in state court by 42 present and former students who do not live in California, but went to college there.  They argued explicitly that the tuition benefit was blocked by the two 1996 provisions of federal law.  The California Supreme Court rejected that argument, concluding that there was no conflict between state and federal laws, because the state law made lower tuition rates equally available to any student who had attended high school in California for three years, whether an alien or a citizen, and whether or not a legal resident of the state.

The students who made the challenge took their case on to the Supreme Court, making the same argument that Candidate Bachmann made in Iowa.  Their lawyer in the case was Kris W. Kobach of the Washington-based Immigration Law Reform Institute, who has been the architect of a number of the new state laws restricting the rights of undocumented aliens living in the U.S.  Their appeal had the support of a number of conservative advocacy groups, as well as nine members of the U.S. House of Representatives.

The Supreme Court, however, refused on June 6 to hear the appeal.  As it usually does with such denials, it provided no explanation.  The likely reason, though, was that there was as yet no conflict among lower courts on the constitutional issue.

A similar law in Kansas was challenged, and a federal appeals court for that area of the country (the Tenth Circuit Court of Appeals) rejected the claim for procedural reasons.  Other challenges are now pending in the courts in Nebraska and in Gov. Perry’s state.  (Gov. Perry, by the way, responded to critics of the tuition benefit when he said at a debate last month that those who oppose such aid “don’t have a heart.”)

The controversy thus is likely to go on, in politics and in the courts.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.