Unlawful Aliens, In-State Tuition, and Preemption

A California statute permits certain aliens who are unlawfully present in the United States to receive the benefit of in-state tuition rates at California public colleges and universities.  Those students enrolled at a public California post-secondary education institutionwho have spent three or more years in a California high school, received a diploma from a California high school, and pledge to seek to obtain lawful residence status as soon as they are eligible to do so are entitled to pay the in-state rates.  A federal law, 8 USC 1623, provides that unlawfully present aliens "shall not be eligible on the basis of residence within a State ... for any post-secondary education benefit ... unless a citizen ... of the United States is eligible for [the same] benefit ... without regard to whether the citizen ... is such a resident."  Yesterday, the California Supreme Court ruled, in Martinez v. Board of Regents, that California's law was not preempted by the federal statute.  Why not?  According to a unanimous California Supreme Court, California's criteria are not on the basis of residence within California.  A New Yorker could send his kid to a boarding school in California for four years and the youngster would be eligible for in-state tuition even though she is not a California resident.  (Perhaps Cate and Thacher, two of California's tonier boarding schools, ought to trumpet this boon in their literature -- "Come to Thacher; go to UC for in-state rates!") 

What the California Supreme Court overlooked is that the issue is not so much express preemption as it is implied "obstacle conflict" preemption.  The California statute arguably "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."  Hines v. Davidowitz, 312 U.S. 52 (1941).   The most natural reading of the federal law is that states may not award resident tuition rates to unlawful aliens unless they award those rates to citizens who are not residents of the state.  Another plausible reading of the federal law is that it denies to states the power to treat unlawfully present aliens residing in the state as residents for purposes of resident tuition rates unless they treat non-resident citizens the same way.  The California Supreme Court read the federal law in this latter way, but even if that construction is accepted, it still seems to me that California's law, as a practical matter, is a thinly disguised method of flaunting the congressional objective.  Congress has articulated a specific objective rather than merely declaring a general aspiration.  See, e.g., Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981).  Kris Kobach, the lawyer representing the plaintiffs, has indicated he will file a cert petition with the US Supreme Court.  

Comments

[Patrick]

Your assessment seems spot on: how is the state statue in this case not an object to a federal goal or scheme?? For the life of me I cannot understand how the Court could be unanimous in rejecting this. I do understand the benefits argument, but -- contrary to the court's declaration in the opinion -- the "benefits" technicality hardly seems like the "main legal issue." It seems too clever by half, in that the legislative history makes it pretty that the state law is an attempt to define away a very real obstacle preemption problem. Based on these observations, if this case goes into the federal system it seems like the plaintiffs have a good chance of reversing the Cal Supremes.

With that said, I’m not so sure. Two fairly untreated issues might take front stage if the Court were to grant cert , and both of them could be much more damaging to the plaintiffs’ case than the benefits argument.

The first is whether the statute federal statute creates a private cause of action at all. Believe it or not, there is no clear answer to this question. The 10th Circuit seems to think a related provision of the statute does create a private cause of action, but the issue is far from settled. From a federal court's perspective, and against the current political backdrop on immigration, to dispose of this case by holding that the federal statute does not create a private cause of action must be very tempting indeed.

The second issue is standing. How the plaintiffs (who are citizen-university students not affected by the state law) can point to the "injury" they need for federal jurisdiction is far from clear. The answer that first pops into mind is that they are taxpayers, but this case isn't a likely candidate for taxpayer standing because there is nothing resembling an establishment clause issue here. So what's left? The stigma of attending school with non-citizens? (Yes, they did argue that -- read their briefs in the CA appellate court -- but it didn't, and shouldn't, fly.) Their political anger at giving money to foreigners? For them that may hurt, but I strongly doubt the pain is "cognizable" under Article III.

Both of these (potential) defects reveal what this suit really is: a sour grapes attempt to use the courts to usurp a state's political decisions. These plaintiffs are not hurt by the law. Nor is it clear that, assuming they have been hurt, the federal law under which they sue even offers them a cause of action. Rather, they are upset that California’s legislature is giving a break to unlawful residents and – in the fine tradition of the ballot imitative state – are seeking to reverse the legislature’s political decisions.

For that reason, despite the strength of the preemption argument, I hope the Court leaves this one alone. I know the plaintiffs are upset. But their remedy here is not, or at least should not be, resort to the federal courts.