It is no secret that
the Comprehensive immigration Reform Act of 2006 (S. 2611), passed
by the U.S. Senate on May 25, 2006, contains numerous
provisions that reward illegal aliens for violating federal
immigration law. What is less well known is that the Senate
bill also condones the violation of federal law by 10 U.S. states.
Indeed, S. 2611 expressly shields these states from liability for
their past violations of federal law.
These absurdities are
found in the Development, Relief, and education for Alien Minors
(DREAM) Act provisions of S. 2611. Just
before the Senate Judiciary Committee approved the first version of
the bill in the evening of March 27, 2006, Senator Richard Durbin
(D-IL) offered the DREAM Act as an amendment. It passed on a voice
vote and was in the compromise version of the bill that the Senate
passed in May.
The DREAM Act is a
nightmare. It repeals a 1996 federal law that prohibits any state
from offering in-state tuition rates to illegal aliens unless the
state also offers in-state tuition rates to all U.S. citizens. On
top of that, the DREAM Act offers a separate amnesty to
On its own, the DREAM
Act never stood a chance of passing. For years, polls have shown
consistently that overwhelming majorities of voters oppose giving
in-state tuition benefits to illegal aliens. Not surprisingly,
the DREAM Act languished in committee for four years until the
opportunity arose to hitch it to the Senate's immigration
Events of the past 10
years illustrate how the DREAM Act would undermine the rule of law.
In September 1996, Congress passed the landmark Illegal immigration
Reform and Immigrant Responsibility Act (IIRIRA). Led by Lamar
Smith (R-TX) in the House of Representatives and Alan Simpson (R-
WY) in the Senate, Congress significantly toughened the
nation's immigration laws. To his credit, President Bill Clinton
signed the bill into law.
in some states-most notably California-had already raised the
possibility of offering in-state tuition rates to illegal
aliens who attend public universities. To prevent such a
development, the IIRIRA's sponsors inserted a clearly worded
provision that prohibited any state from doing so unless it
provided the same discounted tuition to all U.S.
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
Members of Congress
reasoned that no state would be interested in giving up the extra
revenue from out-of-state students, so this provision would ensure
that illegal aliens would not be rewarded with a
taxpayer-subsidized college education. The IIRIRA's proponents
never imagined that some states might simply disobey federal
States Subsidizing the
College education of Illegal Aliens
However, that is
precisely what happened. In 1999, radical liberals in the
California legislature pushed ahead with their plan to have
taxpayers subsidize the college education of illegal aliens.
Assemblyman Marco Firebaugh (D) sponsored a bill that would have
made illegal aliens who had resided in California for three years
during high school eligible for in-state tuition at California
community colleges and universities.
Democrat Governor Gray
Davis vetoed the bill in January 2000, stating clearly in his veto
message that it would violate federal law:
are ineligible to receive postsecondary education benefits based on
state residence…. IIRIRA would require that all out-of-state
Legal residents be eligible for this same benefit. Based on Fall
1998 enrollment figures…this legislation could result in a
revenue loss of over $63.7 million to the state.
introduced his bill again, and the California legislature passed it
again. In 2002, facing flagging poll numbers and desperate to rally
Hispanic voters to his cause, Governor Davis signed the
interests in Texas succeeded in enacting their own version of the
bill. Over the next four years, interest groups lobbying for
illegal aliens introduced similar legislation in most of the other
The majority of state
legislatures had the good sense to reject the idea, but eight
states followed the examples of California and Texas, including
some states in the heart of "red" America. Today, the 10 states
that offer in-state tuition to illegal aliens are California,
Illinois, Kansas, Nebraska, New Mexico, New York, Oklahoma, Texas,
Utah, and Washington.
In most of these
states, the law was passed under cover of darkness because public
opinion was strongly against subsidizing the college education of
illegal aliens at taxpayer expense. The governors even declined to
hold press conferences or signing ceremonies heralding the new
However, in Nebraska,
the last of the 10 states to pass the law, something unusual
happened. During the 2006 session, Nebraska's unicameral
legislature passed an in-state tuition bill for illegal aliens.
Governor Dave Heineman vetoed the bill because it violated federal
law and was bad policy. In mid-April, the legislature, which
included 20 lame-duck Senators, overrode his veto by a vote of 30
The veto would become
an issue in the 2006 Republican gubernatorial primary. Heineman's
opponent was the legendary University of Nebraska football coach
and sitting U.S. Representative Tom Osborne, a political demigod in
the Cornhusker State. Osborne had never received less than 82
percent of the vote in any election. Heineman, on the other
hand, had not yet won a gubernatorial election. He became
governor in 2005 when Governor Mike Johanns resigned to become U.S.
Secretary of Agriculture.
Few believed that
Heineman had a chance of winning the primary, but Coach Osborne
fumbled. He criticized Heineman for vetoing the in-state tuition
bill and indicated that he favored the idea of giving subsidized
tuition to illegal aliens. The voters reacted negatively, and
Heineman surged ahead in the final weeks to beat Osborn by 50
percent to 44 percent in the primary election on May 9, 2006. After
the vote, both candidates said the tuition issue had been
In all 10 states, the
in-state tuition laws make for shockingly bad policy.
First, providing in-state
tuition rates to illegal aliens amounts to giving them a
taxpayer-financed education. In contrast, out-of-state students pay
the full cost of their education. This gift to illegal aliens costs
taxpayers a great deal of money at a time when tuition rates are
rising across the country. The costs of these subsidies are
staggering. For example, California taxpayers pay more than $50
million annually to subsidize the college education of thousands of
these states are
encouraging aliens to violate federal immigration law. Indeed,
breaking federal law is a prerequisite for illegal aliens
because state laws expressly deny in-state tuition to
Legal aliens who have valid student visas. An alien
is eligible for in-state tuition only if he remains in the
state in violation of federal law and evades federal law
enforcement. Legal aliens must pay out-of-state tuition. The states
are directly rewarding this illegal behavior.
This situation is
comparable to a state passing a law that rewards residents with
state tax credits for cheating on their federal income taxes. These
10 states are providing direct financial subsidies to those who
violate federal law.
Third, not only are such laws
unfair to aliens who follow the law, but they are slaps in the
faces of law-abiding American citizens. For example, a student from
Missouri who attends Kansas University and has always played by the
rules and obeyed the law is charged three times the tuition charged
to an alien whose very presence in the country is a violation
of federal criminal law.
Even if a good argument
could be made for giving in-state tuition benefits to illegal
aliens, the bottom line is that the policy violates federal law.
These 10 states have brazenly cast aside the constraints imposed by
Congress and the U.S. Constitution.
In July 2004, a group
of U.S. citizen students from out of state filed suit in federal
district court in Kansas to enjoin the state from providing
in-state tuition rates to illegal aliens. They
pointed out that Kansas is clearly violating federal law and the
Equal Protection Clause of the U.S. Constitution by
discriminating against them in favor of illegal
The district judge did
not render any decision on the central questions of the case.
Instead, he avoided the issues entirely by issuing a particularly
weak ruling that the plaintiffs lacked a private right of action to
bring their statutory challenge and lacked standing to bring their
Equal Protection challenge. The case is currently before the U.S.
Court of Appeals for the Tenth Circuit. Regrettably, the wheels of
justice grind slowly, and a decision is unlikely before the spring
Meanwhile, in December
2005, another group of U.S. citizen students filed a class-action
suit in a California state court. They too
maintain that the state is violating federal law and the U.S.
Constitution. Pursuant to a California civil rights statute,
they are also seeking damages to compensate them for the extra
tuition that they have paid above that charged to illegal aliens.
Additional suits will likely be filed by U.S. citizens in the eight
Another Senate Bill
Just when it looked as
if U.S. citizens might vindicate their rights under federal
law and the wayward states would be held accountable, the
Senate passed the immigration bill, offering the offending states a
The DREAM Act
provisions, which are buried more than 600 pages into S. 2611,
grant an unusual reprieve to the offending states. They
retroactively repeal the 1996 federal law that the 10 states
violated, making it as though the provisions in the 1996 law never
On top of this insult
to the rule of law, the DREAM Act would create a massive
independent amnesty in addition to the even larger amnesty that the
rest of S. 2611 would confer. This amnesty opens a wide path to
citizenship for any alien who entered the country before the age of
16 and has been in the country for at least five years. As with the
rest of the Senate bill, the guiding notion seems to be "The longer
you have violated federal law, the better."
Beyond that, all the
alien needs is a high school diploma or a GED earned in the United
States. Alternatively, he need only persuade an institution of
higher education in the United States-any community college,
technical school, or college-to admit him.
The DREAM Act abandons
any pretense of "temporary status" for the illegal aliens who
apply. Instead, all amnesty recipients are awarded lawful permanent
resident (green card) status. The only caveat is that the alien's
status is considered "conditional" for the first six years. To
move on to the normal green card, the alien need only obtain a
degree from any institution of higher education, complete two years
toward a bachelor's degree, or show that doing so would present a
hardship to himself or his family members. Of course, an alien with
a normal green card can bring in family members and seek
Furthermore, the DREAM
Act makes it absurdly easy for just about any illegal alien-even
one who does not qualify for the amnesty-to evade the law.
According to Section 624(f), once an alien files an
application-any application, no matter how
ridiculous-the federal government is prohibited from deporting
him. Moreover, with few exceptions, federal officers are
prohibited from either using information from the application
to deport the alien or sharing that information with another
federal agency, under threat of up to $10,000 fine.
Thus, an alien's
admission that he has violated federal immigration law cannot be
used against him-even if he never had any chance of qualifying
for the DREAM Act amnesty in the first place. The DREAM Act also
makes illegal aliens eligible for various federal student loans and
In addition to being a
dream for those who have broken the law, the DREAM Act raises an
even larger issue regarding the relationship between states and the
federal government. The 10 states have created a 21st century
version of the nullification movement-defying federal law
simply because they do not like it. In so doing, they have
challenged the basic structure of the republic. The DREAM Act would
pardon this offense and, in so doing, encourage states to defy
other federal law in the future.
One thing that has been
learned in the struggle to enforce federal immigration laws is that
states cannot be allowed to undermine the federal efforts to
enforce them. Rule of law can be fully restored only if all levels
of government are working to uphold it.
Kris W. Kobach is
Professor of Law at the University of Missouri-Kansas City
School of Law and is representing the U.S. citizen plaintiffs
in the Kansas and California cases. He served as counsel and chief
adviser on immigration law and border security to U.S.
Attorney General John Ashcroft from 2001 to