Thursday, September 29, 2011

When Immigration Preemption Is Ignored

At last week's Republican Presidential debate, Texas Governor Rick Perry's answer on immigration could crater his candidacy. Yet, it's a revealing window into the dysfunction of both parties on the topic.

Initially, some background. The "Texas Dream Act" passed and was signed by Perry himself in 2001, six months after he became Governor when George W. Bush went to the White House. The Act extends in-state tuition rates at state universities to illegal aliens residing in Texas, if they've been there for at least three years and said in an affidavit that they've applied for legal residency. Texas was the first state to permit this. A dozen states followed that lead; six states affirmatively bar illegals from residents' tuition reductions at state schools.

During the debate, Perry took shots from other candidates over the Texas Dream law. Responding to Chris Wallace's question, Perry retorted:
[I]f you say that we should not educate children who have come into our state for no other reason than they've been brought there by no fault of their own, I don't think you have a heart. We need to be educating these children because they will become a drag on our society.
Now, as the Manhattan Institute's Heather MacDonald says,
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, as MacDonald goes on to note, Perry's approach is unfair to legal immigrants and their families, plus making illegals pay out-of-state college tuition rates "hardly constitutes a denial of education, as Perry implies." Further, it's expensive--students benefiting from the Dream Act also often receive state financial aid.

Wherever one comes out on the policy question, this post is about another issue MacDonald raises--the legality of the Texas Dream Act. She points to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), section 505 of which says:
Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) 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.
8 U.S.C. § 1623(a).

You'd think that would settle it--but no. First, it's hard to find the proper plaintiff. Day v. Sebelius, 376 F. Supp. 2d 1022 (D. Kan. 2005), aff'd sub nom. Day v. Bond, 500 F.3d 1127 (10th Cir. 2007), cert. denied, 128 S. Ct. 2987 (2008), rejected a challenge to Kansas law on procedural grounds--saying the IIRIRA did not allow private citizens to seek judicial enforcement. Second, don't discount liberal jurisprudence: the California Supreme Court reached the merits in Martinez v. Regents of University of California, 241 P.3d 855 (Cal. 2010), cert. denied ___ U.S. ___ (June 6, 2011), finding no preemption by Section 505 of IIRIRA because some U.S. citizens living elsewhere -- such as those who moved away after high school or attended in-state boarding schools -- also were eligible for in-state college rates.

So, if taxpayers can't turn to courts and California invents illogical interpretations, who could best enforce Federal law? Why, the Federal government, of course. But IIRIRA's been in effect for 15 years. Meaning that four Attorneys General (Janet Reno, John Ashcroft, Alberto Gonzales and Eric Holder) didn't do their jobs. What we have, as reader Doug emails, is "a bipartisan refusal to enforce the law."

That's the real crime. It's also further foundation for states like Arizona and Rhode Island assisting immigration status checking. Especially when border arrests have sharply declined.

Think about it--Texas and a dozen other states flout a Federal statute without consequences (indeed, praised by the left). Yet the requirement that illegals swear that they've applied for legal status makes no sense--they're illegal immigrants; only were there some general amnesty in the future, or they returned to their country-of-origin, could they obtain citizenship. So Texas's affidavit clause is a sham. At the same time, Arizona's genuine and non-discriminatory attempt to supplement enforcement is vilified (and halted by Holder).

There oughta be a law.


OBloodyHell said...

>>> There oughta be a law.

No, as you clearly show, there needs to be a lynching... of politicians and bureaucrats...

suek said...

Nobody is asking where these college students are going to work. It's supposed to be illegal to hire illegals - and supposedly the government is going to go after employers who hire illegals. These students will still be illegal when they graduate...who will hire them? And...they'll have an enormous debt for their college education. What's to stop them from returning to their home country and simply not paying that debt while they use their degree to enhance their employment opportunities in that country?

Carl said...

Sue: You raise a good point. Though government guaranteed student loan debt is not dissolved in bankruptcy, American students routinely evade the law by declaring bankruptcy after graduation when they have few assets and so effectively are judgment proof. In your scenario, the illegals would use tax dollars for tuition, then flee the jurisdiction (putting them equally beyond the reach of bankruptcy), and then use their skills in their country-of-origin.

Pretty much a free lunch--is that what Perry meant when he said opponents had "no heart"?