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Summer 2012] In-State Tuition 33 immigration laws.” Indeed, some view the federal government’s lawsuit as “Obama[’s attempt]... to make amends for what many Latinos regard as a less-than-aggressive drive to pass immigration reform legislation.”228 From a legal standpoint, University of Virginia law professor and former deputy general counsel for the Department of Homeland Security, David Martin, believes that the federal government has “a relatively strong case” against Arizona. American University law professor Stephen Wermiel agrees, noting that this is a case that goes “to the heart of immigration enforcement.” Although Wermiel and other commentators have alluded to the significance of the Supreme Court’s rejection of a preemption challenge to a separate Arizona law in May 2011, Martin finds the two cases to be very much distinguishable.231 In Chamber of Commerce of the United States v. Whiting,232 the Supreme Court upheld the Legal Arizona Workers Act of 2007,233 which provided that employers who did not participate in the federal government’s voluntary computer verification system, E-Verify, or who otherwise hired illegal immigrants, could lose their business license. The Immigration Reform and Control Act (IRCA) makes it “unlawful for a person or other entity... to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.”234 Section 1324a(h)(2) provides that this general ban “preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized Peter Montgomery, CPAC: How to Make Illegal Immigrants Go Home, RIGHT WING WATCH (Feb. 10, 2011, 5:29 PM), http://www.rightwingwatch.org/ content/cpac-how-make-illegal-immigrants-go-home.

Gerstein, supra note 221.

Brian McNeill, U.S. Has ‘Good Chance’ to Win Supreme Court Challenge to Arizona Immigration Law, Martin Says, UNIV. OF VA. SCH. OF LAW (Dec. 13, 2011), http://www.law.virginia.edu/html/news/2011_fall/martin_immigration.ht m.

James Vicini, Analysis: Supreme Court immigration case a federal-state test, REUTERS (Dec. 14, 2011), http://www.reuters.com/article/2011/12/14/us-usaimmigration-arizona-idUSTRE7BD1ZK20111214.

See McNeill, supra note 229.

131 S. Ct. 1968 (2011).

ARIZ. REV. STAT. ANN. § 23-212 (2012); see id. §§ 1976, 1987 (describing § 23-212 as “The Legal Arizona Workers Act of 2007” and determining that the statute does not conflict with federal immigration law).

8 U.S.C. § 1324a(a)(1)(A) (2006).

34 Virginia Journal of Social Policy & the Law [Vol. 19:3 aliens.” The Court held that the Arizona law was a “licensing” law and therefore fell “comfortably within the savings clause” provision of section 1324a(h)(2).236 Although the government cited IRCA’s legislative history, the Court held that “Congress’s ‘authoritative statement is the statutory text, not the legislative history.’”237 Similarly, in considering California’s A.B. 540, the Supreme Court of California placed great weight on the plain language of the federal laws. A.B. 540’s criteria likewise could be reasonably interpreted as falling within the savings clause of 1623(a). While the plaintiffs and the California Court of Appeal cited legislative history, the Supreme Court of California, like the Whiting Court, held that legislative history “cannot change plain statutory language.”239 At the same time, however, the state laws at issue in Whiting and Martinez are distinguishable based on the manner in which Arizona and California sought to comply with the respective federal savings clauses.

Section 1324a(h)(2) of IRCA provides that the general ban on hiring undocumented immigrants preempts any state law “other than through licensing and similar laws.”240 In response, Arizona enacted a licensing law, mirroring the affirmative part of the savings clause allowing for state bans on hiring undocumented immigrants when enacted through legislation other than licensing laws. Section 1623(a) of IIRIRA provides that undocumented immigrants shall not be eligible for postsecondary education benefits “on the basis of residence within a state... unless a citizen or national of the United States is eligible for such a benefit...without regard to whether the citizen or national is such a resident.”242 Rather than mirroring the affirmative part of the savings clause by granting in-state tuition eligibility to out-of-state students—the only possible interpretation according to Kris Kobach —California escaped the larger prohibition by basing in-state tuition eligibility on something other than “residence within a state.” Thus, while the Court found that Arizona’s law was rescued by a savings Id. § 1324a(h)(2).

Chamber of Commerce v. Whiting, 131 S. Ct.1968, 1971 (2011).

Id. at 1980 (quoting Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005)).

Martinez v. Regents of Univ. of Cal., 241 P.3d 855, 863–64 (Cal. 2010).

Id. at 867.

8 U.S.C. § 1324a(h)(2) (2005) (emphasis added).

ARIZ. REV. STAT. ANN. § 23-212 (2012).

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

See Kobach, supra note 88, at 508.

Summer 2012] In-State Tuition 35 clause, the Court may take issue with California’s creation of a “semantic loophole.” The two cases can also be distinguished on implied preemption grounds. The Whiting Court held that the Legal Arizona Workers Act was not impliedly preempted by federal law because “although Congress had made the [E-Verify] program voluntary at the national level, it had expressed no intent to prevent States from mandating participation.” This is not the case with California’s A.B. 540. In fact, Congress has codified its intent that “the availability of public benefits not constitute an incentive for immigration to the United States” and its desire “to remove the incentive for illegal immigration provided by the availability of public benefits”246 From this stated policy, it seems that Congress is a far cry from condoning the California legislature’s efforts.247 Therefore, although there exist federal savings clauses to rescue both the Arizona law and A.B. 540, and although a “plain language” interpretation of these savings clauses weighs in favor of both laws, critics can still make a strong claim of implied preemption against A.B. 540, whereas the Whiting Court rejected such an argument against the Legal Arizona Workers Act.

Hence, if the Court decides to take on the issue, the ultimate fate of A.B. 540 appears to hover in between the Court’s finding of no preemption in Whiting and its more likely finding of preemption in Arizona v. United States. Like in Whiting and unlike Arizona, a pertinent savings clause is available. However, unlike in Whiting, California sought to comply with the savings clause by evading “residence,” and thereby creating a “semantic loophole,” rather than by granting in-state tuition to out-of-state-students.248 Also unlike in Whiting, where the state simply made mandatory what the federal government had already made voluntary, California’s A.B. 540 clearly goes against Congress’s stated purpose in § 1601. Nevertheless, if the Court remains loyal to a “plain language” interpretation as it did in Whiting and as the Supreme Court of California did in Martinez, it may find that “Congress [could] not impliedly prohibit what it expressly permitted”249 and uphold A.B. 540.

See Kobach, supra note 88, at 510.

Chamber of Commerce v. Whiting, 131 S. Ct.1968, 1970 (2011).

8 U.S.C. § 1601(2)(B), (6) (2006) (emphasis added).

Whiting, 131 S. Ct. at 1970.

See Kobach, supra note 88, at 508, 510.

Martinez v. Regents of Univ. of Cal., 241 P.3d 855, 869 (Cal. 2010).

36 Virginia Journal of Social Policy & the Law [Vol. 19:3


The Supreme Court’s denial of certiorari in Martinez v. Regents of the University of California250 leaves in place a Supreme Court of California holding that permits undocumented immigrants to qualify for in-state tuition at California’s public universities and community colleges. While one should not read too much into a denial of many have interpreted the Supreme Court’s denial of certiorari, certiorari as a victory for the state and for the Plyler generation.

Perhaps the Supreme Court condones California’s efforts to ensure that all qualified students “will continue to have access to affordable higher education opportunities, irrespective of their immigration status.”253 Perhaps it agrees with the Supreme Court of California’s “plain language” reading of the statutes and likewise sees a clear lack of preemption.254 Or perhaps the Court’s priorities are elsewhere at the moment, as indicated by its grant of certiorari on Arizona’s enforcementcentered law, S.B. 1070.255 The Whiting and Arizona cases, distinguishable on their facts, shed far less light on the Court’s likely ruling on A.B. 540 than they do on the Court’s prerogatives at this point in time. For now, so long as Congress leaves §§ 1621 and 1623 intact, and so long as states continue to model their in-state tuition laws after California’s A.B. 540, evading “residency” appears to be a proper mechanism for fulfilling the academic hopes and dreams of the Plyler generation.

131 S. Ct. 2961 (2011).

See Kevin R. Johnson, Supremes Vacate Third Circuit Decision in Hazleton v. Lozano, Deny Cert in California Supreme Court Decision in Martinez v.

Regents of the University of California, IMMIGRATIONPROF BLOG (June 6, 2011), http://lawprofessors.typepad.com/immigration/2011/06/supremes-vacatethird-circuit-decision-in-hazleton-v-lozano.html.

U.S. Supreme Court Declines to Review AB 540 Litigation, UNIV. OF CAL.

NEWSROOM (June 6, 2011), http://www.universityofcalifornia.edu/news/article/ 25689.


Martinez, 241 P.3d at 863–67.

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