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Virginia Attorney General Unilaterally Rules That Illegal Immigrants Qualify For In-State Tuition

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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.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Jenos Idanian #13 says:

    Suppose my wife and I lived in Jefferson County, West Virginia, and we both worked in Virginia. We pay taxes to the state of Virginia, but we’re residents of WV. Our daughter wants to attend UVA, which our taxes support, but we get to pay out-of-state tuition.

    Congratulations, Virginia. You’ve just created a situation where it’s actually more advantageous to be an illegal alien than an American citizen.

    Maybe we should persuade our daughter to renounce her citizenship and claim to have lived in VA for the past few years to advance her education…

    Like or Dislike: Thumb up 7 Thumb down 12

  2. Mu says:

    What’s the current law in VA? Does it explicitly forbid undocumented kids from getting the in-state rate, or does it not address the question. In the former case, the attorney general would be wrong, and the new bill would be needed. In the later case the bill would have just cleared up an ambiguity in the law, and the attorney general was in his rights to interpret the current state.

    Like or Dislike: Thumb up 4 Thumb down 1

  3. Jenos Idanian #13 says:

    Oh, and after four years of education, what do we end up with?

    Someone who is still not legally employable.

    Meanwhile, since college slots are a finite resource, some other would-be student — an American or a legal alien — has been shut out.

    Like or Dislike: Thumb up 4 Thumb down 9

  4. Tyrell says:

    If these people behave themselves, get jobs, pay taxes, and learn English then I would not disagree. But under no circumstances should they be placed ahead of or given an advantage of children of legal citizens.

    Like or Dislike: Thumb up 4 Thumb down 1

  5. @Mu:

    The law appears to be silent on the issue but it has always been the case, up until now, that in-state tuition was only available to American citizens or legal residents.

    Like or Dislike: Thumb up 0 Thumb down 0

  6. 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.

    You mean kinda like how Cuccinelli unilaterally threw out the nondiscrimination policies of every public university in Virginia?

    Like or Dislike: Thumb up 7 Thumb down 1

  7. Oh, by the way Doug:

    To ensure the application of uniform criteria in administering this section and determining eligibility for in-state tuition charges, the State Council of Higher Education shall issue and from time to time revise guidelines, including domiciliary status questions to be incorporated by all state institutions of higher education in their admissions applications. These guidelines shall not be subject to the Administrative Process Act.

    An advisory committee, composed of at least ten representatives of institutions of higher education, shall be appointed by the Council each year to cooperate with the Council in developing the guidelines for determining eligibility or revisions thereof. The Council shall consult with the Office of the Attorney General and provide opportunity for public comment prior to issuing any such guidelines. (Va. Code § 23-7.4:3(B)

    Like or Dislike: Thumb up 7 Thumb down 0

  8. You may also want to read the actual letter Herring sent out:

    This Office has received numerous inquiries regarding the ability of students who have been approved…

    Like or Dislike: Thumb up 4 Thumb down 0

  9. Mu says:

    @Doug Mataconis: Seems to be a lot like the change in NM from a no gay marriage to a full equality state simply based on that no one ever wrote it into law, and some clerks started issuing licenses. The supreme court finally said it was ok, no legislative input whatsoever.

    Like or Dislike: Thumb up 3 Thumb down 0

  10. @Timothy Watson:

    I did.

    My post doesn’t question Herring’s legal authority to do what he did. I do, however, question whether it’s the best way to accomplish something like this in a democratic republic.

    Like or Dislike: Thumb up 1 Thumb down 3

  11. @Mu:

    But at least in New Mexico, a Court weighed in.

    That hasn’t happened in Virginia, at least not yet

    Like or Dislike: Thumb up 0 Thumb down 0

  12. @Doug Mataconis: So…what exactly is the Attorney General, in the course of his official duties, supposed to do when he’s asked for legal advice from a state college about a matter of state law?

    Like or Dislike: Thumb up 8 Thumb down 0

  13. DrDaveT says:

    @Jenos Idanian #13:

    You’ve just created a situation where it’s actually more advantageous to be an illegal alien than an American citizen.

    How so? Your kid can get in-state tuition at UWV, which is even cheaper. Go Mountaineers.

    That’s not what you wanted? Maybe you should have chosen to live in VA, instead of going for the tax break.

    Like or Dislike: Thumb up 13 Thumb down 0

  14. Jenos Idanian #13 says:

    @DrDaveT: In my hypothetical, I’m paying Virginia taxes that support the school, but my daughter is treated worse than an illegal alien — who then gets a degree but can’t legally get a job.

    I’ve paid taxes to support UVA, probably more than the family of the illegal alien, but I’m treated worse.

    In my hypothetical, of course. But it’s an entirely plausible scenario. I’m sure it happens in most states.

    Like or Dislike: Thumb up 1 Thumb down 10

  15. David M says:

    Someone clearly has trouble with the concept of in-state tuition.

    Like or Dislike: Thumb up 8 Thumb down 0

  16. @Jenos Idanian #13: Uh, Jenos, I’m not a lawyer but:

    Students who live outside the Commonwealth and have been employed full time inside Virginia for at least one year immediately prior to the date of the alleged entitlement for in-state tuition shall be eligible for in-state tuition charges if such student has paid Virginia income taxes on all taxable income earned in the Commonwealth for the tax year prior to the date of the alleged entitlement. Students claimed as dependents for federal and Virginia income tax purposes who live outside the Commonwealth shall become eligible for in-state tuition charges if the nonresident parents claiming them as dependents have been employed full time inside Virginia for at least one year immediately prior to the date of the alleged entitlement and paid Virginia income taxes on all taxable income earned in the Commonwealth for the tax year prior to the date of the alleged entitlement. Such students shall continue to be eligible for in-state tuition charges for so long as they or their qualifying parent is employed full time in Virginia, paying Virginia income taxes on all taxable income earned in the Commonwealth and the student is claimed as a dependent for Virginia and federal income tax purposes. (Va. Code § 23-7.4:2(A))

    Like or Dislike: Thumb up 10 Thumb down 0

  17. gVOR08 says:

    @Doug Mataconis:

    Under the law, they are already entitled to in-state tuition in Virginia based on their residence and attendance in Virginia schools.

    The law appears to be silent on the issue but it has always been the case, up until now, that in-state tuition was only available to American citizens or legal residents.

    Have they been denying in-state tuition to Dreamers without legal authority?

    Like or Dislike: Thumb up 2 Thumb down 0

  18. Eric Florack says:

    There is, apparently no more rule of law.
    The “dream act” is a nightmare, particularly to those who end up paying for its implementation.

    Like or Dislike: Thumb up 0 Thumb down 5

  19. stonetools says:

    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.

    Doug must be living in a mirror universe where the Republicans give a d@mn about working with Democrats to achieve compromise for the greater good. Here on Earth Prime, Republicans have adopted a scorched earth policy of opposing everything the Democrats are for, regardless of objective merit.
    As for the Dream Act, Republicans have made oppisition to any such “amnesty ” type reforms a cornerstone of their national strategy. Virginia Senate Republicans accordingly voted to kill the Virginia Dream Act bill proposed by Democrats.

    Thursday morning the Senate Committee on Education and Health voted to kill SB 249, a bill to allow students with deferred action status to pay in-state tuition at public colleges and universities if they meet certain requirements, including established roots in the community and a family history of paying taxes.

    SB 249 was introduced by Sen. Donald McEachin (D – Henrico) and chief co-patroned by Sen. Adam Ebbin (D – Alexandria) and Sen. Dave Marsden (D – Fairfax). It failed in a party-line, 6-7 vote.

    The proposed legislation met a similar fate last year

    I don’t see the Republicans working for a compromise there. Doug, can you explain where you see any sign that the Republicans want to compromise on this?

    Like or Dislike: Thumb up 6 Thumb down 0

  20. Gavrilo says:

    The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (signed by President Clinton) prohibits state colleges and universities from providing in-state tuition rates to illegal aliens “on the basis of residence within the State”—unless the same in-state rates are offered to all citizens of the United States. There is no abiguity here. States that are offering in-state tuition to illegals are violating federal law. The Holder Justice Dept is simply not enforcing it.

    Like or Dislike: Thumb up 1 Thumb down 4

  21. JWH says:

    I cursorily examined the Atty G’s legal reasoning, and (as nearly as I can tell) it looks something like this:

    1) The federal government has granted indefinite, renewable legal residence to this group;

    2) Generally, Virginia extends in-state university tuition to individuals with some form of legal immigration status, as long as those individuals meet other Virginia residency requirements; therefore,

    3) These students, granted that legal residence status under federal law, qualify for in-state tuition.

    That said … I think this one might have been better from the judicial branch than from the executive branch.

    Like or Dislike: Thumb up 0 Thumb down 0

  22. @JWH: State colleges were already facing legal challenges by students; is the Attorney General supposed to defend acts that are, in his opinion, against the established law?

    Like or Dislike: Thumb up 1 Thumb down 0

  23. Jenos Idanian #13 says:

    @Timothy Watson: I was unaware of that particularity of Virginia, and I thank you for bringing it up. (You lose half a point for quoting without a link, but still a very respectable score.) That represents a level of self-awareness and common sense that I simply don’t grant to legislators as a matter of course.

    It quite thoroughly addresses one aspect of my objection, and I hereby withdraw it with thanks to you. I would recommend other states follow that example.

    My other objection — that an illegal alien with a college degree is still not legally employable, as they have no legal right to work and employers cannot legally employ them — still stands, as does the part where college admissions are a finite resource and should go first to those who can take that degree and then use it to acquire gainful employment (and, consequently, pay more in taxes based on their theoretically-enhanced income).

    Like or Dislike: Thumb up 0 Thumb down 2

  24. sam says:

    Jeez, 13, just plug Va. Code § 23-7.4:2(A) into google. Give him his half point back.

    Like or Dislike: Thumb up 1 Thumb down 0

  25. Jenos Idanian #13 says:

    @sam: Split the difference: he loses a quarter-point.

    Like or Dislike: Thumb up 0 Thumb down 0