Tuesday, November 16, 2010

California's Own DREAM Act Upheld

On Monday, November 15, the California Supreme Court upheld the right of illegal immigrant residents to pay the same tuition at California public colleges and universities as legal California residents, and therefore less than legal residents of other states who want to attend the California State Colleges and Universities or the more prestigious University of California.

In order to understand the decision, remember that the decision revolved around residency, not citizenship (which is another issue entirely). Let me say in advance that nobody hates this decision more than I. But hating a decision and hating the reasoning and law behind the decision are not the same thing. I commend the California Supreme Court for refusing to do what the United States Supreme Court has routinely done--legislate from the bench. The decision was unanimous. The liberals on the court no doubt love the idea of confirming rights for those who have entered our nation and our state illegally. Their concurring opinions indicate exactly that. But the decision was written by the conservative Chief Justice Ming Chin and represented the opinions of the conservative majority of the high court.

Reaction to the decision throughout the conservative blogging community is largely one of anger at the court. That anger is misplaced. The conservative majority did exactly what we strict constructionists and believers in judicial restraint hold dear. More importantly, conservative thinkers cannot believe in judicial restraint only when it suits our purposes. What the California court did was read the applicable California statutes, consider precedent, determine how they applied under the California and federal Constitutions, and held that the California law did not distinguish between legal and illegal residents. As hateful as that is, it is the correct law.

So where should the misplaced anger actually be directed? That is much easier to explain than the difficult result in the court case. California has been the leader on the national road to ruin on many fronts, and this issue is no exception. While conservatives and many moderates nationwide are fiercely opposing the loathsome DREAM Act that Harry Reid wants to shove down our collective throats, California passed its own version of that act back in 2001. The heavily Democrat-controlled Assembly and state Senate found it more important to discriminate against legal citizens of other American states than it did to make it clear that the tuition/residency requirement was to be applied to both legal and illegal immigrants residing in California. Democratic Governor Gray Davis agreed.

California law allows in-state tuition for all those who have resided in California for at least three years and graduate from a California high school. Chief Justice Chin was grim as he announced that the 2001 law does not conflict with federal law regarding immigration and residency. "It cannot be the case that states may never give a benefit to unlawful aliens without giving the same benefit to all American citizens." As a practical matter, that's horrible. The decision essentially says that illegals who have complied with the residency requirement even though living here illegally cannot have greater benefits than those from other states who have complied with the same residency requirement.

That means, legally speaking rather than practically, if the Smith family in Connecticut wants to be on an equal footing with the Martinez family of Chihuahua who are living in California illegally, all the Smiths have to do is send their children to live with Aunt Maude in California for three years of high school. The Martinez and Smith kids will now all qualify for in-state tuition. As ridiculous as that may be in real life, it is an accurate reading of California law. Break up American families in Connecticut so that illegals in California can stay together and benefit from liberal pro-illegal immigration policies.

The illogic of the practical analysis is summed up by pro-immigrant Mexican American Legal Defense and Educational Fund (MALDEF) general counsel and spokesman Thomas A. Saenz: "This law makes higher education affordable for so many students who have the added difficulty of not being eligible for federal financial aid." Get it? The California and federal law prohibit financial aid for illegals, so the only way they can afford to attend our tax-funded California institutions of higher learning is to pretend their illegal status means nothing in relation to residency requirements.

And just in case you're wondering how much money that might involve: A natural-born American citizen in Connecticut who comes to California to attend a California public college or university will pay considerably more for tuition than the illegal immigrant. At the State Colleges and Universities, that would be about a $12,000 per year difference. At the elite schools in the University of California system such as Berkeley and UCLA, it comes closer to $20,000 per annum. State and federal funds are not available to pay the lower tuition for the illegals, but on the other hand MALDEF doesn't give scholarships and grants to non-Hispanics.

So this is really a case of don't shoot the messenger. The California court did its duty and followed its oath to be a respecter of law and not of persons. Don't make the mistake of thinking they were happy about being placed in that position. Save your ire for the California Democratic legislature and former governor, and prepare yourselves for the oncoming battle against the federal DREAM Act. California's proto-DREAM Act conformed itself to federal standards by disallowing public funds to be used to assist illegals gaming the educational system by maintaining California residency. Reid's monstrous federal DREAM Act has no such compunctions.

There is only one way Californians could change the result of the state Supreme Court decision. I'm not holding my breath. California is heavily Democrat, and Hispanics now comprise more than half the students in California public schools. Needless to say, a huge proportion of those students are here illegally. California could follow the lead of Arizona and a few other states and defy the illegal immigrant enthusiasts in Congress by changing its residency requirement vis a vis college tuition to specifically exclude illegal immigrants from the residency formula.

If such a change were to be made to the California constitution, and if the California court found that law to be valid on adequate independent state grounds (quite likely), then like gay marriage the matter would be tossed back into the federal court system. Such a state ruling would on its face raise the issue of whether the state's right to protect its own citizens and their investment in their home state is trumped by the federal government's allegedly exclusive control over immigration law. I'm not making any bets on how that might go or what reasoning the federal courts might use.


AndrewPrice said...

This is so typically outrageous. So people who are here illegally will pay less for college tuition than people who live here legally? What has gone wrong with this country? This is the kind of thing that needs to change and fast.

Tennessee Jed said...

Superb legal analysis, Hawk. Like Andrew, it's absurdness is beyond question, but the evil resides within the legislature here, not the judiciary.

Anonymous said...

Andrew: I'm hoping that the DREAM Act will die the death it deserves at the federal level despite the lame duck Congress. How much that would help convince Californians to modify their own law remains anyone's guess. It may take the state going all the way to the bottom of the bankruptcy cliff to do it. And it's a shame that being broke rather than being patriotic would be the thing that does it.

StanH said...

Thanks California, a pant load, for leading the way. We have a student here in Georgia, KSU, who was pulled over on a simple traffic violation. Turns out she is an illegal, fake drivers license, fake everything, yet somehow she was able to obtain financing to attend a state university, how can this be? She’s been in this country since she was six, thirteen years. The state is talking about deporting her, not the parents, the original law breakers, but the kid. We need to stop the insanity, build the damn wall, and man it. And start the methodical deportation of these gate crashers. I have to admit I feel bad for this kid, but the law, is the law, I know! …let the kid stay and send the parents back? This is a damned mess.

Anonymous said...

Tennessee: Thanks for the compliment. I'm not much on defending our crazy courts these days, but the poor California Supreme Court has taken all kinds of heat over this and Prop 8 when in actuality they were only doing exactly what they are charged with doing--implementing the law as it is, not as they wish it were.

Anonymous said...

Stan: When the law is ignored or haphazardly enforced, there is lawlessness. I feel for the person you're talking about. It's not her fault the legislators can't get their acts together. But as I pointed out in an earlier post, there are reasonable exceptions allowed.

I would find that exception to be setting her on a course for a proper student visa and eventual citizenship, but send her parents back, now. It would be a rough choice for her to decide whether to stay and complete her education or return "home" with the parents. Still, though she didn't create this mess, neither did you or I. We're expected to live within the law, and they must do so also.

T_Rav said...

LawHawk, thanks for pointing out this isn't the court's fault. I was ready to go off on them when I first started reading, but if they're just interpreting state law, then it still sucks, but it's constitutional. Now I have to go find someone else to punch.

notawonk1 said...

california continues to give the rest of the country a big f-u, because you know the dime has to come from somewhere and since they have already shown to be fiscally irresponsible, whose pocket will they beg for the coin. ours. will that be possible? (stop laughing)

Joel Farnham said...

It may be legal, but it isn't right.

LawHawk, could you turn out the lights before you leave California? You are running up a heckuva bill.

Anonymous said...

T_Rav: Jerry Brown will be inaugurated as governor in January. You could punch him, the Speaker of the Assembly and the President pro tem of the State Senate. They'll all be on the podium, but you'll have to move fast before the capitol police grab you.

Ponderosa said...

Sorry LH but the decision makes no earthly sense.

A person can be in the US illegally but a legal resident of a state.

Why doesn't federal law, which is clearly superior(term?), simply negate state law? Residency should be a subset of citizenship.

And if I'm wrong - which is possible - then the only major benefit to citizenship is the right to vote...for a bunch of bozos.

And even voting has been corrupted.

No wonder libs delight in making laws, once in place they feel free to just ignore them and conservatives foolishly thinking laws mean something...obey them.

Anonymous said...

NotAWonk1: That California higher education budget gap could be closed fairly quickly by eliminating illegals from in-state tuition. But the legislature won't act, and the public doesn't get it. They'll just wait for Uncle Sugar in DC to bail the state out. They're in for a very unpleasant surprise.

Anonymous said...

Joel: I have my own water, generator and my own wood--and a gun. I ain't leaving! LOL

Anonymous said...

Ponderosa: All my gut feelings are with you. But the law doesn't support us. Citizenship and residency logically ought to be intertwined, but they're not.

If you carefully read my analysis, or worse yet, the court decision, you'll find that the court tried to find a way to uphold a distinction between legal residents and non-legal residents, but couldn't find it in the statutes. Furthermore, they couldn't find a way around the byzantine logic by which the state law is in almost perfect conformity with the federal law. It was the first place the justices looked hoping to find that the federal ban on financial aid could be bootstrapped onto a ban on the students. It isn't there.

The statute is in conformity with the federal law in that all California residents (legal or not) are treated the same way, and all non-residents (legal or not) of California are treated solely as non-residents for purposes of tuition.

And if California specifically passes a statute that excludes illegal immigrants who live in California from in-state tuition, it will face a hostile Justice Department that will find some ground to sue California (just like it sued Arizona for "interfering in federal immigration matters").

Ponderosa said...

Lawful Permanent Resident (LPR)

Any person not a citizen of the United States who is residing the in the U.S. under legally recognized and lawfully recorded permanent residence as an immigrant. Also known as "Permanent Resident Alien," "Resident Alien Permit Holder," and "Green Card Holder."

I'm not sure you have time the time or desire to debate this with me - especially since I have no legal training - but there are US residency requirements - how is this not cut and dried?

Do you have a "Green Card"? No?
Then you are not resident of state X.

Anonymous said...

Ponderosa: For IRS, ICE and other federal purposes, that definition is completely correct. However, each state has the right to set its own residency requirement entirely separate from legal residence in the United States.

The holding in the California case was based on adequate independent state grounds. Part of the reason that the federal law is not violated is that California's residency requirement is less stringent than the federal rule, and clearly avoided addressing "legal" residence in order to give the illegals tuition breaks while skirting federal rules. California is free to make its own residency rules for strictly state matters, such as tuition at state colleges and universities.

Explaining the rules set by the Supreme Court about state matters in state courts being settled on adequate independent state grounds is a six-hour class in law school. But for simplicity's sake, all those elements are present in this case. 1) It's a state statute. 2) It involves state colleges and universities. 3) It bases its tuition schedule entirely on California residence (and doesn't address whether the residence is "legal" by federal standards). 4) The statute makes no reference to federal "residence" statutes. 5) The state statute as it presently stands imposes a less stringent standard than the federal rule and therefore does not offend federal case law or Constitutional requirements. 6) The rule for tuition residency is the same for everyone, even illegals, which actually fits the current prevailing Supreme Court opinions regarding treatment of immigrants. 7) Yes, they are here illegally, but that is an immigration issue which the federal courts have so far held to be exclusively the province of the federal government. That may change after the Arizona case is finally adjudicated, but for now, that's the law.

The law you cited is correct, in the federal jurisdiction. There is an entire course in law school entitled "conflict of laws" which addresses the issues of seemingly inconsistent state laws in relation to each other and state laws in relation to federal law. The current unpleasant but correct result at the California Supreme Court is actually tame compared to some of the battles that have occurred in courts since the Founding. For instance, when a case has been appealed from a state court to a federal court, the federal rule is that federal substantive law must be applied, but the state's procedural law must be applied. It's not as simple as it seems.

Anonymous said...

Ponderosa: Now having said all that, your conclusion is what I would like to see as law. But California doesn't ask that question of applicants for in-state tuition. They simply ask "Have you lived continuously in the State of California for the past three years?"
It would be great if the law asked your simple question--but it doesn't, and the court couldn't rule as if it did.

Brittanicus said...


As for the California high Court allowing illegal immigrants the special privilege of paying in-state tuition. Out-of-State American students who pay full tuition should boycott any College or University that accepts this outrageous ruling and head for an education in Arizona or other reputable institution, that isn't governed by Liberal doctrines? No wonder California is up to its neck in red ink, as the Sacramento assembly is full of Liberal progressives who are brain dead, to the costs added to the growing list of tax burdens on Californians. Millions of American citizens and legal residents cannot pay their bills, have homes in foreclosure or cannot feed their family. Yet the illegal alien invasion has not been stopped, by any administration.

Second to the taxpayers spending issue of welfare for illegal aliens and instant citizenship to babies of foreign nationals that intentionally break our sovereign laws, is the repressive Revenue taxing chaos. I heard Ron Wyden, a Democrat on C-Span lame Duck session of Congress on how to overhaul the tax code for individuals and corporations; making it simpler and to lower the rates but cover more income. It’s logical that jobs wouldn't be spirited overseas if the tax code was fair to everybody, and not an easy mark for the special interest groups to corrupt our politicians by keeping loopholes open for the wealthy. Wyden’s' main emphasis is imposing three tax rates - 15 percent, 25 percent and 35 percent with a limited number of deductions. On mortgages, for example, they would remove the deduction for second homes and allow only the first $500,000 of a mortgage to get a tax break.

Brittanicus said...

Our country is in financial turmoil, because of the huge "tax and spend" Liberal movement of telling the people, we are here to subsidize your every need, as long as you vote for us; Illegal or not? Yes! It’s the illegal immigration issue that has finally become highlighted and emanating as public anger and a growing concern that the government failure to reduce it impact; that a large group of politicians, governors, judges are catering to these people, rather than the majority of the population. It’s another hundred billion dollar deficit that should be stopped immediately and foreign nationals grandfathered out of the country using enforcement of tools like E-Verify, newly customized. Costly yes! But in the long run it will save us trillions of dollars in cash payments and public services that are strained. Prior to inception of the entitlement system in America, there was little attraction for illegal workers and their families. Today--Poverty is threatening America’s stability, that in these economic times, we cannot afford our own families needs; yet we are given taxpayers money to promote good will in other countries.

Nowadays people who are desperate and penniless are pouring across our leaky border, or on one-way-tickets jet liners to this sovereign country. Illegal aliens already know with fraudulent ID they can access our welfare and social services before they even arrive. Europe has already overrun with economic nationals, whose main objective is to collect welfare or free health care treatments. If we enforce our immigration laws, we can cut the US deficit at the federal and even State levels. We should listen to the insight of prominent non-profit organizations as the Heritage Foundation, which claims another Amnesty such as the Dream Act, will further cripple our national deficit. Hundreds of thousands of students as green card holders can sponsor their immediate family. Those newly sponsored once processed, can bring in their family and the chain of immigrants continuous.on and on...? Robert Rector of the Heritage has determined that this Dream Act Amnesty, along with the expenditures of Chain migration will increase our debt by another 2.6 Trillion dollars.

Outside of this another 113 billion dollars is calculable by illegal alien families yearly, through instant citizenship through the 14th Amendment for babies. Much of this money is accountable, by funding to Sanctuary Cities; haven for illegal aliens, gangs and other criminal elements. Taxpayer money should not be giving federal funds to places of so-called Sanctuary Cities and even States, such as California as this is a travesty to our immigration laws. Not fully understanding the tax laws myself, accept paying my families fair share, but realize that the Autistic code has thousands of loopholes for the well-to-do, but gives no-quarter to the general public who end up being audited. Of course simplifying the tax code would mean unemployment. Google the truth that the Liberal press deny or lie about at NumbersUSA and conclude this battle to stop any form of Amnesty, by contacting your Senate or Representative at (202)224-3121 today.

Ponderosa said...

I know you’re correct…just hoping, beyond hope that something had been overlooked.

Thank you for your patient and detailed replies.

Anonymous said...

Brittanicus: Your discussion is excellent and detailed. For purposes of today's article, I'd like to comment on a point you made that directly affects the tuition situation. Residents of other states should be enraged. It's one thing to charge higher tuitions to persons from out of state, but quite another to soak them while giving illegals the in-state rate. A professor of law in Arizona filed the original lawsuit that was just ruled on using that ground as an argument. He believes that the loss is not entirely permanent if he can get a federal court to listen to the issue of discrimination in favor of illegals and against legal residents from out-of-state. The courts have ruled that a state may charge its own residents less than out-of-state residents, but the courts have not yet ruled on the specific issue of in-state tuition for illegals versus higher tuitions for US citizens who are residents of other states. This could be the sole federal issue that could trump the adequate independent state grounds. I wish the professor every success, and will be rooting for him.

Anonymous said...

Brittanicus: We occasionally deal with illegal immigration as a specific topic. I hope you will continue to give us input on the topic in the future as we continue to watch the circus macabre in Washington DC. We also consider NumbersUSA to be a valuable resource and strongly suggest that those who are interested in the far broader and more expensive national immigration issue check in with that site regularly.

Anonymous said...

Ponderosa: As a retired instructor of constitutional law, I love it when people ask intelligent questions about legal decisions that seriously impact all of us. This was not an easy topic to address, since all conservatives intensely dislike the result. Until I read the decision, my initial reaction was to think someone had slipped LSD into Justice Chin's tea. But he got it right, which produced a very distressing result.

But wait, there's more! See my first response to Brittanicus (above). There is one issue that might be federal, if the plaintiff can find a federal judge who thinks the case can be decided on other than adequate independent state grounds. I will say that the lawyer used a federal supremacy/equal protections/privileges and immunities argument that was rejected by the state court but might get purchase on the federal level. He seemed very optimistic that he could accomplish that.

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