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c. Implied Preemption: A.B. 540 Is a “Regulation of Immigration” In DeCanas, the Supreme Court recognized that the “[p]ower to regulate immigration is unquestionably exclusively a federal power.”144 Under the first test in DeCanas, courts must determine whether the state enactment or policy “is an attempt to regulate immigration.”145 A state law is preempted if the law attempts to make a determination that is “independent” of federal standards regarding “who should or should not be admitted into the country, and the conditions under which the person may remain.”146 As examples of state laws regulating immigration, the Court cited Henderson v. Mayor of New York147 and Chy Lung v.

Freeman.148 Henderson involved a New York statute that required every foreign passenger arriving on the state’s shores to pay a bond “as an indemnity against his becoming a future charge to the state,” unless the shipowner paid a fixed sum.149 Chy Lung concerned a similar requirement by the state of California, limited to “lewd and debauched women” and certain other classes of people.150 Justice Miller, writing for the majority in both opinions, held that the “passage of laws which concern the admission of citizens... of foreign nations to our shores belongs to Congress, and not to the States.”151 Arizona’s S.B. 1070, on which the Supreme Court granted certiorari on December 12, 2011,152 can similarly be treated as a “regulation of immigration.” In fact, in section 1 of this law, the Arizona legislature made “attrition through enforcement the public policy of all state and local government agencies in Arizona.”153 Sections 2(B), 3, and 6 explicitly require state law enforcement officials to identify immigration violations,154 punish unauthorized immigrants for failure to comply with federal registration laws,155 and arrest immigrants for civil immigration violations.156 In upholding the District Court’s preliminary injunctions, the Ninth Circuit did not rely on the first test in DeCanas, presumably because it found clear conflict preemption.157 However, an analysis DeCanas v. Bica, 424 U.S. 351, 354 (1976).

Id. at 353.

See Frank, supra note 122, at 144 (citing DeCanas, 424 U.S. at 355).

92 U.S. 259 (1875).

92 U.S. 275 (1876).

Henderson, 92 U.S. at 267.

Chy Lung, 92 U.S. at 276.

Id. at 280.

Arizona v. U.S., 132 S. Ct. at 845.

2010 Ariz. Sess. Laws 113, amended by 2010 Ariz. Sess. Laws 211 U.S. v. Arizona, 641 F.3d at 348.

Id. at 355.

Id. at 361.

Id. at 350.

24 Virginia Journal of Social Policy & the Law [Vol. 19:3 under the first DeCanas test would be very similar. For example, section 2(B) requires law enforcement officials to check the immigration status of persons who they reasonably suspect to be unauthorized immigrants, and of all arrestees before they are released, regardless of reasonable suspicion.158 Yet Congress has spelled out the conditions under which state officials are permitted to assist the federal government in the enforcement of immigration laws. For example, the Attorney General may enter into a written agreement with a State.159 The Ninth Circuit held that “Section 2(B) sidesteps Congress’ scheme for permitting the states to assist the federal government with immigration enforcement,” by enacting “a mandatory and systematic scheme that conflicts with Congress' explicit requirement that in the ‘[p]erformance of immigration officer functions by State officers and employees,’ such officers ‘shall be subject to the direction and supervision of the Attorney General.’”160 In the same vein, some scholars argue that A.B. 540 conflicts with federal authority to enforce immigration law because it requires state officials to make independent judgments about whether students are disqualified as nonimmigrant aliens under 8 U.S.C. § 1101(a)(15).161 The U.S. District Court for the Central District of California made such a finding with respect to sections of California’s Proposition 187 in League of United Latin American Citizens v. Wilson (LULAC II).162 Sections 5 and 6 denied public social services and health care to “an alien in the United States in violation of federal law.”163 Because federal law provides that those lawfully “admitted” to the United States are those who an immigration officer determines satisfy admissibility criteria at the time of entry,164 the District Court found that sections 5 and 6 were preempted in that they purported to create a state classification scheme for immigrants requiring state agents “to make independent determinations of who is and who is not ‘lawfully admitted’ in this country.”165 Similarly, by singling out students who are nonimmigrant aliens under 8 U.S.C. § 1101(a)(15), A.B. 540 forces state officials to make independent judgments about whether students have such status.

ARIZ. REV. STAT. ANN. § 11-1051(B) (2010).

8 U.S.C. § 1357(g)(1) (2006); see U.S. v. Arizona, 641 F.3d at 348–49.

U.S. v. Arizona, 641 F.3d at 350 (quoting 8 U.S.C. § 1357(g)(3) (2006)).

See Kobach, supra note 88, at 516. CAL EDUC. CODE § 68130.5(a) provides:

“A student, other than a nonimmigrant alien within the meaning of paragraph (15) of subsection (a) of Section 1101 of Title 8 of the United States Code, who meets all of the following requirements shall be exempt....” (emphasis added).

997 F. Supp. 1244 (C.D. Cal. 1997).

See id. at 1250.

8 U.S.C. § 1101(a)(13) (2006).

LULAC II, 997 F. Supp. at 1257 (quoting League of United Latin Am.

Citizens v. Wilson, 908 F. Supp. 755, 772 (C.D. Cal. 1995)).

Summer 2012] In-State Tuition 25


While critics of A.B. 540 and its progeny rely on the legislative history and overall purpose of §§ 1621 and 1623 to assert federal preemption, the state statute’s proponents have at their advantage the plain language of the state law and federal laws.166 The Supreme Court of California adopted this “plain language” approach in its 2010 decision upholding A.B. 540.167

–  –  –

a. A.B. 540 and Its Progeny Are Not Preempted by Section 1621 Proponents argue first that A.B. 540’s exemption from nonresident tuition is not a “benefit” within the meaning of the federal law, and second, to the extent that A.B. 540 does confer a benefit on illegal aliens, it complies with the “affirmatively provides” requirement of § 1621(d).

With regard to the first argument, proponents point to § 1621(b)(4), which refers to benefits in terms of the “amount of the assistance provided” or “cost of the assistance provided.”168 Because “amount” generally refers to monetary payments, and in-state tuition does not involve the payment of any money to students, A.B. 540 does not confer a benefit within the meaning of §1621.169 In Equal Access Education v. Merten,170 the U.S. District Court for the Eastern District of Virginia also interpreted “benefit” in § 1621 to mean monetary benefit.171 In that case, the court considered the 2002 Virginia policy denying undocumented immigrants admission to state universities.172 The plaintiffs argued that the policy was preempted by federal law because the state had invaded two fields occupied by federal law: (1) the field of immigration regulation, “specifically in the area of classification and reporting of persons based on immigration status as governed by the Immigration and Nationality Act,” and (2) the field of “alien access to post-secondary education.”173 The plaintiffs pointed to PRWORA, which classifies persons as qualified or non-qualified aliens “for the purpose of determining eligibility for federal, state and local Martinez v. Regents of Univ. of Cal., 241 P.3d 855, 863–64 (Cal. 2010).


8 U.S.C. § 1621(b)(4) (2006).

See Martinez v. Regents of Univ. of Cal., 83 Cal. Rptr. 3d 518, 531 (Cal. Ct.

App. 2008).

305 F. Supp. 2d 585 (E.D. Va. 2004).

Id. at 605.

Id. at 591–93.

Id. at 604.

26 Virginia Journal of Social Policy & the Law [Vol. 19:3 benefits, including post-secondary tuition assistance benefits”174 and “sets forth a system for verifying eligibility, including immigration status, for federal public benefits.”175 The District Court, however, interpreted PRWORA much more narrowly, as addressing “only postsecondary monetary assistance paid to students or their households, not admissions to college or university.”176 Therefore, the court concluded, “access to public higher education is not a benefit governed by PRWORA, nor is it a field completely occupied by the federal government.”177 One particular proponent of A.B. 540, Michael A. Olivas, looked to § 1623 to ascertain the definition of “benefit.”178 Section 1623(a) refers to “benefit” in terms of “amount, duration, and scope.”179 Olivas concluded that a benefit must be monetary in nature and that, because “the right to be considered for in-state resident status” is a “nonmonetary benefit,” it is not a “postsecondary education benefit” within the meaning of § 1623.180 Assuming that a term generally bears the same meaning throughout a statute, “the right to be considered for in-state resident status” is thus not a “benefit” within the meaning of § 1621.

The California Court of Appeal for the Third District, however, rejected this argument in Martinez v. Regents of University of California, holding that A.B. 540 confers “in-state tuition” (and not “the right to be considered for in-state resident status”) and that in-state tuition is a calculable amount and qualifies as a “benefit” within the meaning of §

1621.181 Although the Supreme Court of California later reversed, the Court of Appeal likewise determined that A.B. 540 conferred a benefit within the meaning of § 1621.182 Second, proponents of A.B. 540 assert that, to the extent that A.B.

540 does confer a benefit on illegal aliens, it complies with the “affirmatively provides” requirement of § 1621(d). They claim that the word “affirmatively” means explicitly rather than implicitly, and that A.B. 540 “affirmatively provides” that aliens not lawfully present are Id.


Id. at 605 (emphasis added) (citing 8 U.S.C. § 1611 (2006)).

Id. at 605.

Michael A. Olivas, Lawmakers Gone Wild? College Residency and the Response to Professor Kobach, 61 SMU L. REV. 99, 124 (2008).

8 U.S.C. § 1623 (2006) (emphasis added).

Olivas, supra note 178, at 124–25; see also 8 U.S.C. § 1623 (2006).

Martinez v. Regents of Univ. of Cal., 83 Cal. Rptr. 3d 518, 531 (Cal. Ct. App.


See Martinez v. Regents of Univ. of Cal., 241 P.3d 855, 868 (Cal. 2010).

Summer 2012] In-State Tuition 27 eligible for state benefits under subsection 1621(d) by referring to “person[s] without lawful immigration status.”183 The Supreme Court of California adopted this position. In doing so, it rejected the Court of Appeal’s reading of § 1621(d) to require that state laws expressly reference § 1621, determining that the Court of Appeal’s interpretation “encounters a formidable obstacle: It lacks grounding in the text of [the statute].”184 The Supreme Court of California “and the high court have cautioned against reading into a statute language it does not contain or elements that do not appear on its face.”185 Although the Court of Appeal cited a House conference report in support of its interpretation of “affirmatively provides” in subsection 1621(d),186 the California Supreme Court held that such a report “cannot change plain statutory language.”187 The court went on to explain that “[t]he general rule that a court should not add an element not appearing on the face of a statute has particular force here,” because “[t]he Legislature could easily have referenced section 1621 in section 68130.5, and no doubt [] would have done so if section 1621 had so required.”188

b. A.B. 540 and Its Progeny Are Not Preempted by Section 1623

As explained above, Michael A. Olivas has examined the words adjacent to “benefit” in § 1623 and concluded that “the right to be considered for in-state resident status” does not qualify as a “postsecondary education benefit” within the meaning of § 1623, and thus § 1623 has no bearing on A.B. 540.189 However, proponents generally assume that A.B. 540 conveys a benefit. The primary argument against preemption by § 1623, then, is that A.B. 540 does not grant instate tuition on the basis of residency in the state, but based on other criteria, such as three years of attendance at a California high school.190 A.B. 540’s proponents argue that the statute’s exemption from nonresident tuition is not based on residence for the simple reason that many nonresidents may qualify for it. The Supreme Court of California has identified three ways in which students could have attended high school in California for three years and qualified for the exemption Martinez, 83 Cal. Rptr. 3d at 544.

Martinez, 241 P.3d at 867 (quoting Kimbrough v. United States, 552 U.S. 82, 102 (2007)).

Id. at 867.

Id. (citing H.R. REP. NO. 104-725, at 383 (1996) (Conf. Rep.)).

Id. (citing Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005)).


See supra notes 178, 180 and accompanying text.

CAL. EDUC. CODE § 68130.5(a)(1)–(4) (West 2012).

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