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«IN-STATE TUITION FOR UNDOCUMENTED STUDENTS: FUELING THE STATE-FEDERAL BATTLEGROUND Jennifer Joy Lee* ABSTRACT In the last decade, state legislatures ...»

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In DeCanas v. Bica,102 the Supreme Court offered three tests for determining when a state or local regulation affecting immigration is displaced through implied preemption. A state regulation is preempted if (1) it falls into the narrow category of a “regulation of immigration,” (2) the federal government has completely occupied the field, or (3) the state regulation “conflicts in any manner with any federal laws or treaties.”103 Under the third test, a state law is unconstitutional if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the [Immigration and Naturalization Act].”104 Critics of A.B. 540 and its progeny have asserted both express preemption under 8 U.S.C. §§ 1621 and 1623, and implied preemption under each of the DeCanas tests. The legislative history and overall purpose of these two federal statutes weigh in favor of a finding of federal preemption.

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a. A.B. 540 and Its Progeny are Preempted by Section 1621 Section 1621(a) of PRWORA provides that undocumented immigrants are not eligible for “any State or local public benefit.”105

Section 1621(d) creates an exception to the general ban, providing that:

A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would Viva! Int’l Voice for Animals v. Adidas Promotional Retail Operations, Inc., 162 P.3d 569, 571 (Cal. 2007); see U.S. CONST. art. VI, cl. 2.

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)).

Hispanic Interest Coal. of Ala. v. Bentley, No. 5:11-CV-2484-SLB, 2011 WL 5516953, at *15 (N.D. Ala. Sept. 28, 2011).

424 U.S. 351 (1976).

Kobach, supra note 88, at 514 (citing DeCanas v. Bica, 424 U.S. 351, 355, 357 (1976)).

DeCanas, 424 U.S. at 363 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)); Fla. Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963).

8 U.S.C. § 1621 (2006).

18 Virginia Journal of Social Policy & the Law [Vol. 19:3 otherwise be ineligible under subsection (a) only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.106 Critics of A.B. 540 and its progeny argue first that in-state tuition is a “benefit” within the meaning of § 1621,107 and second, that A.B. 540 does not comply with the “affirmatively provides” requirement of § 1621(d) because it does not expressly reference § 1621.108 With regard to the first argument, § 1621(c) defines “state or local public benefit” to include “any … postsecondary education … benefit.”109 The law’s legislative history also supports reading “benefit” to include in-state tuition. A House Conference Committee Report, commenting on the language that was ultimately enacted as § 1623, states: “This section provides that illegal aliens are not eligible for in-state tuition rates at public institutions of higher education.”110 Because § 1623 was enacted after § 1621 and was designed to narrow the grant of authorization previously conferred on states by § 1621(d),111 the legislative history of § 1623 is particularly relevant to the interpretation of § 1621.

Critics also argue that A.B. 540 does not “affirmatively provide” that undocumented immigrants are eligible for the “benefit” of in-state tuition within the meaning of § 1621(d) because it does not explicitly reference § 1621. Otherwise, the word “affirmatively” in § 1621(d) is superfluous.112 Furthermore, a House Conference Report states: “Only the affirmative enactment of a law... that references this provision, will meet the requirements of this section. The phrase ‘affirmatively provides for such eligibility’ means that the State law enacted must specify that illegal aliens are eligible for State or local benefits.”113 This argument was well received by the California Court of Appeal for the Third District, which observed that this stricter reading of § 1621(d) holds state legislators accountable to the public, by “forc[ing] any state that is contemplating the provision of benefits to illegal aliens to spell out that intent publicly and explicitly,” thereby “plac[ing] the public on notice that their tax dollars are being used to support illegal aliens.”114

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b. A.B. 540 and Its Progeny Are Preempted by Section 1623 Section 1623 makes it unlawful for a state to provide postsecondary education benefits to undocumented immigrants “on the basis of residence within a State,” unless it provides to all citizens or nationals the same benefit “(in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.”115 Critics of A.B. 540 argue that this language explicitly preempts the California law and have mounted three main arguments in support of this proposition.

First, critics argue that A.B. 540’s requirement that undocumented immigrants file an affidavit pledging that they will file for legalization of status as soon as they are eligible is empty and unenforceable. It is argued that such “affidavit clauses” are inoperative because the only way that undocumented immigrants can legalize their status is to receive “some general amnesty in the future” or to return to their country of origin for a certain length of time.116 Second, critics argue that the high school attendance and graduation requirement is a de facto “residence” requirement.117 In fact, by statute, high school attendance is linked with residence in the state of California.





Section 48200 of the California Education Code states:

Each person between the ages of 6 and 18 years not exempted... is subject to compulsory full-time education. Each person subject to compulsory full-time education [and not exempted]... shall attend the public full-time day school or continuation school or classes... of the school district in which the residency of either the parent or legal guardian is located....118 Requiring children to attend high school in the school district where their parents reside means that most children who attend high school in California will also be residents of California.

Under California tuition laws, “residence” refers to physical presence in the state, coupled with an intent to remain for a nonU.S.C. § 1623 (2006) (emphasis added).

When Immigration Preemption is Ignored, NO OIL FOR PACIFISTS (Sept. 29, 2011 12:01 AM), http://nooilforpacifists.blogspot.com/2011/09/whenimmigration-preemption-is-ignored.html; see also Immigration and Nationality Act of 1952 (INA), 8 U.S.C. § 1182(a)(9) (2006) (imposing bars to admissibility for aliens unlawfully present in the United States).

See Martinez, 83 Cal. Rptr. 3d at 524.

CAL. EDUC. CODE § 48200 (West 2012).

20 Virginia Journal of Social Policy & the Law [Vol. 19:3 temporary purpose.119 Again, this means that most children who attend public high school in California will also be residents of California.

Finally, there exists an empirical link between high school attendance and state residency, governed by common sense as well as statistics. Nine days before the enactment of A.B. 540, the California Secretary of Education released an Enrolled Bill Report on A.B. 540 which estimated that between 5000 and 6000 undocumented students would qualify for the exemption, while less than 500 boarding school and border area students would qualify.120 If the boarding school and border area students, who are less likely to possess both physical presence and intent to remain in California, tend not to fit the high school requirement of A.B. 540, but the undocumented students in California, who are more likely to have both physical presence and an intent to remain in California, do tend to fit the high school requirement, then the A.B. 540 criteria appear to turn on one’s residency within the state.

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Under the second test in DeCanas, a state law is preempted if the federal government has intended to occupy the field the state law regulates.121 Similarly, a state law is preempted where the system of federal regulation is “‘so pervasive’ that no opportunity for state action remains.”122 The test is whether there is a showing that it was the “clear and manifest purpose of Congress” to effect a “complete ouster of state power.”123 Critics argue, and the California Court of Appeal for the Third District has agreed, that Congress expressly limited the states’ power to offer in-state tuition to undocumented immigrants in §§ 1621 and

1623.124 In League of United Latin American Citizens v. Wilson (LULAC Id. § 68062.

Martinez, 83 Cal. Rptr. 3d at 537 (citing CAL. DEP’T OF EDUC., ENROLLED BILL REPORT ON A.B. 540, 2001-02 Reg. Sess., at 5 (2001).

DeCanas v. Bica, 424 U.S. 351, 351 (1976).

William N. Frank, Note, 9/11 Changed [Not Quite] Everything: The PostAbility of States to Admit Illegal Immigrants to State Universities, 13 SW. J.

L. & TRADE AM. 135, 145 (2006) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 601–02 (E.D. Va. 2004) (citing DeCanas, 424 U.S. at 357).

See Martinez, 83 Cal. Rptr. 3d at 541, 544.

Summer 2012] In-State Tuition 21 II),125 the U.S. District Court for the Central District of California went even further, holding that “Congress has occupied the field of regulation of public postsecondary education benefits to aliens.”126 In that case, the District Court considered whether California Proposition 187, which denied higher education to illegal aliens, was preempted by federal law.127 The court held that, through enacting §§ 1621 and 1623, “Congress has ousted state power in the field of regulation of public benefits to immigrants by enacting legislation that denies federal, state and local... postsecondary education benefits to aliens who are not ‘qualified.’”128

b. Implied Preemption: A.B. 540 Conflicts with Congress’s Purpose

Under the third DeCanas test, a state law is preempted if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,”129 or “if it conflicts with federal law, making compliance with both state and federal law impossible.”130 If the purpose behind the federal law “cannot otherwise be accomplished—if its operation... must be frustrated and its provisions be refused their natural effect—the state law must yield....”131 Critics of A.B. 540 argue that the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress as reflected by federal immigration law as a whole.

Specifically, 8 U.S.C. § 1601(2) states: “It continues to be the immigration policy of the United States that... the availability of public benefits not constitute an incentive for immigration to the United States.”132 Further, in § 1601(6), Congress provides that “[i]t is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits.”133 In addition, critics point to legislative history. Specifically, a House Conference Committee Report states that “[§ 1623] provides that illegal aliens are not eligible for in-state tuition rates at public institutions of 997 F. Supp. 1244 (C.D. Cal. 1997).

Id. at 1256.

Id. at 1252.

Id. at 1254 (citing 8 U.S.C. §§ 1611, 1621).

Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 602 (E.D. Va. 2004) (citing DeCanas, 424 U.S. at 363).

Id. (citing Michigan Canners & Freezers v. Agric. Mktg. & Bargaining Bd., 467 U.S. 461, 469 (1984)).

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000) (citing Savage v. Jones, 225 U.S. 501, 533 (1912)).

8 U.S.C. § 1601(2) (2006).

Id. § 1601(6).

22 Virginia Journal of Social Policy & the Law [Vol. 19:3 higher education.”134 Finally, critics such as Kris Kobach emphasize a commonsense reading of § 1623, arguing that Congress “clearly...

sought to prohibit states from offering resident tuition rates to illegal aliens by making it impossibly expensive to do so.”135 Critics of A.B. 540 have put forth, and the California Court of Appeal has accepted, a conflict preemption argument based on impossibility.136 That is, compliance with both A.B. 540 and § 1623 is impossible for the Regents of the University of California and for undocumented immigrants. Having established that A.B. 540 is a de facto “residency” requirement, it is impossible for the Regents of the University of California to comply with state and federal requirements because A.B. 540 allows the benefit to out-of-state U.S. citizens only if they attend a California high school for three years—de facto “residence.”137 Hence, the statute does not afford the same benefit to citizens “without regard to” California residence, as required by § 1623.138 Furthermore, federal law forbids aliens to enter the United States without applying for admission.139 Those aliens who are unlawfully present in the United States, including those who have overstayed their visas, are subject to deportation.140 As a result, an undocumented immigrant “must continue to remain in the United States and attend university in violation of federal law in order to receive benefits [under A.B. 540].”141 As critic Kris Kobach characterizes the dilemma, “[i]f such an alien leaves the United States, as required by federal law, he loses eligibility for the state benefit. On the other hand, if he obtains a student visa to attend college in compliance with federal law, he loses eligibility for the state benefit.”142 The legal framework therefore renders the receipt of benefits under state law and compliance with federal law an “impossibility” for the alien.143

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