Immigration Litigation: California’s tuition benefits for unlawful aliens

June 8, 2011

Immigration Law(Editor’s note: Because of the of the current significance of the topic, we’ll be looking at different cases in immigration law throughout the month of June.)

For the first week’s post on Arizona’s “business death penalty” law, click here.

On Monday, the Supreme Court denied certiorari to a unanimous, but contentious, California Supreme Court ruling.

The ruling upheld a California law that exempted certain nonresidents, including unlawful aliens, from paying nonresident tuition rates at state colleges and universities.

The California law allows unlawful aliens to pay the lower state resident tuition rate if certain requirements are met.

Specifically, if they attended a California high school for three years or more and received their diploma or equivalent in California.

Additionally, the statute expressly singles out unlawful aliens with an additional requirement: filing an affidavit with the school stating that they have applied to legalize their immigration status, or will do so as soon as they are eligible.

The challenge to this law was brought by several nonresidents who were paying or had paid the nonresident tuition rate.

There were eight legal theories presented in the challenge, but they were all in one of three categories: federal preemption, equal protection, or the Privileges or Immunities clause of the Fourteenth Amendment.

As seems to be the recent trend with immigration cases, the bulk of the opinion was spent discussing preemption.

There are two U.S. statutes that the challengers claimed expressly preempted the California law: 8 U.S.C. §§ 1621 and 1623.

§ 1621 provides that unlawful aliens are not eligible for any state or local public benefit.

§ 1623 provides that unlawful aliens are ineligible for any postsecondary education benefit based on state residency unless a U.S. citizen is also eligible.

At first glance, you’d think that § 1621 easily preempts the California law, and you’d be correct, if not for § 1621’s last subdivision.

That subdivision allows a state to provide a public benefit to an unlawful alien through a state law enacted after the federal statute.

The California Supreme Court found the California law fit within that exception perfectly.

The court also upheld the law under § 1623, ruling that since the California law was based not on residency, but on high school attendance (allowing many other legal nonresidents of the state those benefits), § 1623 did not preempt it.

The circumstances of this case are very similar to those of the Supreme Court decision on the Arizona “business death penalty” (discussed last week).

In both cases, the state legislature enacted laws dealing with immigration, a field typically reserved for federal regulation.

As such, federal preemption was a major concern.

Here, the California Supreme Court found that California Governor Gray Davis vetoed an earlier version of the law because he feared it would be in conflict with federal law (§ 1623 in particular).

In the Arizona case, legislators made punitive provisions in the law that were probably conflicting with federal law, but were able to package them into a “licenses” exception in the federal law.

The Supreme Court ruled in Arizona’s favor, and by denying cert here, it has effectively ruled in California’s favor, too.

However, the two laws, and their subsequent court victories, represent opposite ends of the ideological spectrum on the immigration issue.

The one area they do have in common, though, is upholding state laws in the face of potentially conflicting federal ones.

Whether this will hold true in future immigration cases, though, remains to be seen.