DOJ Sues Texas to Enforce Law Prohibiting States From Offering Illegal Aliens In-State Tuition—and Wins

On Wednesday, Attorney General Pam Bondi’s Justice Department finally did what every prior administration (including Trump 1.0) for the past three decades refused to do—enforced the federal immigration law that bans states from providing in-state tuition to illegal aliens unless they provide the same benefit to citizen-students from any state. 

That same day, Texas cried uncle, agreed with the government, settled the case, and entered into a consent decree.

Here’s the background.

On June 4, the Justice Department filed a lawsuit against Texas to enforce a statute that was passed by Congress in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act. That statute, 8 U.S.C. § 1623, states that “an alien who is not lawfully present … shall not be eligible on the basis of residence … for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit … without regard to whether the citizen or national is such a resident.”

In simple language, this means that any state that wants to provide in-state tuition to illegal aliens can only do so if it offers in-state tuition to citizens or lawful residents of other states as well.

Texas legislators weren’t alone in passing an in-state tuition law for illegal aliens that violates federal immigration law. 

According to Ballotpedia, as of 2021, another 16 states and the District of Columbia all provide in-state tuition to illegal aliens through state laws while charging out-of-state students higher tuition. Another seven state university systems authorize in-state tuition for illegal aliens.

We first wrote about this problem in 2011 in a Heritage paper, “Providing In-State Tuition for Illegal Aliens: A Violation of Federal Law.” Back then, 12 states were violating federal law—and the number has simply expanded since then. 

As we pointed out, these states weren’t just violating federal law; they were encouraging illegal immigration, treating students U.S. citizens from out of state unfairly, and forcing their taxpayers to subsidize the education of illegal aliens. We have reiterated the point several times since then (see here, here, and here).

Although this law was passed in 1996, every administration, Republican and Democrat, from George W. Bush to Joe Biden, refused to enforce it, failing in their fundamental obligation to enforce the law. For thirty years, they were responsible for allowing American college students and their bill-paying parents to be cheated and treated worse than illegal aliens. 

Parents who tried to sue over this issue were repeatedly defeated in the courts because multiple judges said there was no private right of action under the statute. The only viable plaintiff was the federal government—a fact that put even greater onus on the Justice Department to fulfill its obligation to enforce the law.

But this shameful record of neglect finally changed with the lawsuit filed against Texas. To the credit of Texas Gov. Greg Abbott and Attorney General Ken Paxton, they immediately settled the case, entering into a consent decree that finally corrected the problem created by the Texas legislature.

In that consent decree, already approved by Judge Reed O’Connor, Texas acknowledges that its state laws that provide in-state tuition to “aliens who are not lawfully present in the United States, violate the Supremacy Clause and are unconstitutional and invalid.”

This happened in large part because of the executive orders that Trump issued on Feb. 19 and Apr. 28—“Ending Taxpayer Subsidization of Open Borders” and “Protecting American Communities from Criminal Aliens.”

The first order directed federal agencies “to ensure, to the maximum extent permitted by law, that no taxpayer-funded benefits go to unqualified aliens.” The second order directed federal officials—like the attorney general—to go after “state and local laws, regulations, policies, and practices favoring aliens over any groups of American citizens that are unlawful.”

In our 2011 paper, we said that the “President and the Attorney General have an obligation to enforce the provisions of the United States’ comprehensive federal immigration regulation—including the federal law prohibiting state colleges and universities from providing in-state tuition rates to illegal aliens” when they don’t provide the same benefit to citizen students.

Now, parents and their kids—who have been treated with disrespect and forced to subsidize the tuition costs of illegal aliens—have finally achieved justice. But they shouldn’t have had to wait 30 years for a president and an attorney general who were willing to fulfill their obligation and do what it takes to protect them.

And that’s just one state down. Fifteen to go—not including the nation’s capital.

Hans von Spakovsky is the manager of the Election Law Reform Initiative and a senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.

Charles “Cully” Stimson is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies, the manager of the National Security Law Program, a senior legal fellow, and a senior advisor to the president at The Heritage Foundation.

Reprinted with Permission from The Daily Signal – By Hans von Spakovsky & Charles “Cully” Stimson

The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.