Virginia Attorney General Unilaterally Rules That Illegal Immigrants Qualify For In-State Tuition
Virginia’s new Democratic Attorney General announced yesterday that, going forward, children who were brought to the United States illegally by their parents would be able to qualify for in-state tuition at state colleges and universities:
Attorney General Mark R. Herring of Virginia told the state’s public colleges and universities on Tuesday that children brought to the United States illegally and raised here, the so-called Dreamers, qualified for in-state tuition.
Mr. Herring, a Democrat, issued the legal opinion after Republicans in the General Assembly killed a state Dream Act early this year. It was the second time he acted independently on a controversial policy in his short tenure: In January, days after being sworn in, he refused to defend Virginia against lawsuits challenging its ban on same-sex marriage, a choice that enraged Republican leaders, with some calling for his resignation.
Mr. Herring, who won election last year only after a recount, justified his actions on in-state tuition, as on same-sex marriage, by appealing to progressive principles.
“These ‘Dreamers’ are already Virginians in some very important ways,” he said in a statement on Tuesday. “Instead of punishing and placing limits on these smart, talented, hard-working young people, Virginia should extend them an opportunity for an affordable education.”
The Republican leadership of the House accused Mr. Herring of short-circuiting legislative debate.
“We are deeply concerned by the attorney general’s actions today and what appears to be a continued willingness to ignore and circumvent the duly adopted laws of the Commonwealth,” said a statement by Speaker William J. Howell; the majority leader, Kirk Cox; and other Republican leaders.
In a letter to the presidents of the state’s public colleges and universities, Mr. Herring said young people brought illegally to the United States whose deportations had been deferred under a federal program were entitled to in-state tuition, provided that they met the Virginia residency requirements for all students.
Mr. Obama set up the program, known as Deferred Action for Childhood Arrivals, in the heat of the presidential campaign in 2012, when immigration policy was politically ablaze. Mitt Romney, the Republican nominee, opposed tuition breaks for the children of illegal immigrants. The president’s initiative allowed some 1.7 million people brought to the country before the age of 16 to apply for de facto residency.
Mr. Herring’s office said about 8,100 Virginians had been approved under the deferred deportation program. They were required to have no criminal record and to be a high school graduate, enrolled in school or honorably discharged from the military. To qualify for in-state tuition, they must meet the same requirements as other students, including one continuous year of Virginia residency.
As a matter of policy, I think Attorney General Herring made the right decision here. The entire idea behind the DREAM Act, which at this point still remains little but a dream in the United States Congress, is that children who were brought to this country by their parents should not be punished for the crimes of their parents. They didn’t chose to enter the United States illegally, after all, but instead had that choice made for them. Most of them have spent the vast majority of their young lives growing up in American communities, going to American schools, and playing with American friends. They are, in the most important sense of the word, as American as any one of us. Granting them dispensation for a deportation that is, after all, based on actions that someone else took on their behalf doesn’t seem very just at all, and threatening to send them back to a country that they have little or no memory of because they lack a piece of paper just strikes me as cruel. In this particular case, the students who would benefit from this program have been going to school in Virginia alongside their American-born classmates, learning, and earning grades just like the rest of the students. Under the law, they are already entitled to in-state tuition in Virginia based on their residence and attendance in Virginia schools. There really isn’t any rational reason not to allow them to pay the same tuition rates as their fellow Virginians, so long as they meet the academic standards for admission.
There is one troubling aspect to Attorney General Herring’s decision here, though, that Brian Schoeneman touches upon in a post at Bearing Drift, a prominent Virginia political blog:
To paraphrase Chief Justice Marshall, it is emphatically not the province and duty of the executive branch to say what the law is. Nor is it the role of the Attorney General to implement a policy that the General Assembly has chosen not to implement. Yet that’s exactly what he chose to do today. It does not and should not matter that his cause is just. Doing the wrong thing for the right reasons is no more virtuous than doing the right thing for the wrong reasons. There is a more important concept at stake here.
To be clear, I fully support the idea that those Virginians who were brought here illegally as children should not be punished for the sins of their fathers. Nor should they be treated like they’re criminals, either. That’s why I supported the DREAM Act at the Federal level, and why I supported SB 249 in the Senate. It wasn’t their fault what their parents did, and if they’ve attended Virginia schools and have otherwise qualified as Virginia residents, I think those kids should have the same privilege of lower tuition mine will have if he chooses to go to college here in Virginia. But despite how fundamentally fair SB 249 is, it didn’t pass. It didn’t even make it out of committee.
Every legislative session, thousands of good bills that deserve to be passed and enacted into law die in Committee. The best of them come back year after year, and are eventually enacted into law. That’s how our process is designed to work. It may be slow, but it is designed to build consensus and to ensure that the laws enacted are truly the will of the people. The best lawmakers are able to find ways to ensure that those laws do get passed and even when their bills fail, they rarely take that failure and walk away, never to try again. At the same time, it’s important that if those laws fail, the will of the legislature should stand. If the people disagree with what the legislature has done, the proper recourse is the ballot box, not a letter from the Attorney General, or an Executive Order from the President. The will of the legislature is, after all, the will of the people as expressed by their elected representatives. Even when it’s wrong, misguided, or flies in the face of common sense or common decency.
It would be different if this issue dealt with a fundamental right, like voting or even marriage. It doesn’t. There is no fundamental right to cheaper college tuition. This is a question of privilege, not one of right, and thus should be fought over, debated, and decided by the legislature.
I think Schoeneman is basically correct here. There’s no question in my mind that it is right as a matter of policy for children of illegal immigrants to be treated the same as their fellow Virginia students when it comes to eligibility for in-state tuition. However, that ought to be a decision that is left to the legislature, not one that is carried out by executive decree. First of all, there’s the basic idea that the elected representatives of the people, in the legislature, are the ones who are charged with the responsibility of making, and changing the laws. The job of an Attorney General is to represent the states legal interests, on the other hand. Now, as part of that job, Herring is tasked with issuing advisory opinions to state agencies and others regarding the proper interpretation of state law, and that’s essentially what he did here. However, there’s a difference it seems to me between explaining the legal implications of a particular statute and interpreting a statute in such as way as to create a new entitlement, and that’s exactly what in-state tuition is. The second problem with the manner in which Herring did this, of course, is that there would be nothing stopping a future Republican Attorney General from reversing this decision. Policy of this kind should be set forth in law, not subject to change based on the whims of the executive.
Unfortunately, I fear that what Herring has done here will only further poison the well between Republicans and Democrats in Richmond. There is already a budget standoff between the Governor and the Republican House of Delegates over Governor McAuliffe’s efforts to opt-in to the Medicaid expansion in the Affordable Care Act. This action will likely prompt Republican Delegates to attempt to repeal Herring’s ruling rather than taking legislative action to codify it, which is what they should be doing. It would have been much better if Herring and McAuliffe had attempted to work a deal out with the legislature over this rather than acting unilaterally and essentially seeming to confirm the oppositions fears.