Urquhart on InState Tuition for illegals

http://www.steveu.com/2005/06/education-immigration-and#comments
Wednesday, June 15, 2005

Education, Immigration, and Constitutional Law 101

In establishing the Constitution, the people, through their states, gave certain powers to the federal government. These are called delegated or enumerated powers. Governmental powers not given to the federal government (all others) are called reserved powers. The rules are simple: the federal government acts in areas of its enumerated powers, and the states act in areas involving reserved powers.

Today, in the education committee we addressed 2 important issues. I wish that our committee broadcasting system already were in place. Today's hearing would have been very interesting to all Utahns and would have provided a great constitutional lesson. We addressed K-12 educational testing requirements, and we addressed college tuition for illegal aliens. Both issues potentially pack dramatic, life-altering implications.

However, because of the constitutional structure of our Nation, the two issues must be addressed in different fashions.Dr. Patti Harrington discussed the layers of testing we require of our K-12 students. She pointed out that the testing regime is an important part of the State's comprehensive assessment and accountability system (which we desire to implement, instead of the federal system dictated by No Child Left Behind). Can Utah do better? Absolutely. The push-and-pull with the federal government has prompted us to look more closely at what we're doing. We’re working to make improvements – as we should. Authority to govern education matters is a reserved power; it is a “state’s rights” issue.

We also discussed Utah’s existing law allowing illegal aliens to pay in-state tuition at our colleges and universities. The Committee took the action to advance a bill that would repeal the statute. Because this involves a very passionate issue, some might instinctively say “good,” and others might instinctively say “bad.” Whatever one’s underlying feelings are, the decision was driven by the constitutional structure of our nation. Immigration, unlike education, is an issue that has been delegated to the federal government.The federal government has declared, as it can, that states shall not offer in-state tuition to illegal aliens.

The House conference report states, “This section provides that illegal aliens are not eligible for in-state tuition rates at public institutions of higher education.” Likewise, Senate sponsor Alan Simpson stated, “Illegal aliens will no longer be eligible for reduced in-State college tuition.” Our Utah statute is at odds with federal law and, therefore, must yield.A lot of the arguments against repeal were very emotional. But, as I stated in committee, “This is not an emotional issue; this is a Constitutional issue.” Also, it is a very serious dollars and cents issue.

Because the federal law establishes that Utah can't give illegal aliens a tuition break that it doesn't give all Americans, there is a great threat that all out-of-state students who have paid more than the in-state tuition paid by illegal aliens for Utah colleges and universities could file a class action suit to get back that additional money -- $100,000,000 since the statute went into effect and growing at about $30,000,000 every year it stays in place in the future. Clear law and a serious threat of liability dictated the outcome.One member of the committee stated after the votes that she thought the committee was inconsistent in demanding state's rights on one issue and deference to the federal government on the other. Rep. Christensen correctly pointed out that it is the Constitution that demands state's rights on the education issue and deference on the immigration issue. Our founders imposed an order; though I think the federal government has lost all concept of that fact, governments must act accordingly.