Fifth Circuit Mulls Instate Tuition for Illegal Aliens

September 2, 2022

IRLI, attorneys group show federal law targeting this state benefit preempts Texas law

WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) and Attorneys United for a Secure America (AUSA), IRLI’s nationwide network of attorneys, both filed friend-of-the-court briefs in the Fifth Circuit Court of Appeals in a case concerning a federal statute that makes U.S. citizens, regardless of what state they live in, eligible for instate tuition at state universities that charge illegal aliens instate tuition because they live in their state. The University of North Texas, which, following Texas law, treats illegal aliens who live in Texas as “residents” of Texas and charges them instate tuition, is appealing a Texas district court’s order, based on the federal statute, that the university also charge instate tuition to U.S. citizens who are not Texas residents.

IRLI shows in its brief that the federal law, under a 2018 Supreme Court federalism precedent, should be read as conferring a federal right on out-of-state U.S. citizens to be charged the same instate tuition rate that instate illegal aliens are charged. Because the U.S.-citizen members of the plaintiff group in this case have this federal right, and the Texas law requiring them to pay out-of-state tuition violates this right, the Texas law is preempted under the Supremacy Clause of the Constitution, which makes federal law supreme over state law. And because those members have this right, and are harmed financially by its violation, they have standing to seek the injunction the district court granted.

AUSA’s brief, which it filed on behalf of American Victims of Illegal Alien Crime (AVIAC), points out that the federal law at issue is part of a longstanding congressional policy of preventing illegal aliens from receiving state financial benefits that otherwise would act as a magnet for yet-more unlawful entry into America, resulting in yet-more crimes committed by illegal aliens. The brief accordingly suggests that the court allow state universities in Texas to charge illegal aliens out-of-state tuition, as a way of avoiding federal preemption without having to charge nonresident Americans instate tuition. “Giving instate tuition to illegal aliens, while Americans from other states, and also foreign students lawfully present in this country, have to fork over much-higher out-of-state tuition is discrimination, pure and simple,” said Lorraine Woodwark, Director of AUSA. “It is fundamentally unfair to give a financial reward to aliens who’ve violated our sovereignty and broken our laws, and who have also taken a seat at a state university from an American,” said Don Rosenberg, President of AVIAC.

“This case marks the first time a federal district court has issued an order enforcing this federal statute,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The court properly found that Texas’s law requiring that out-of-state U.S. citizens be charged out-of-state tuition was preempted, and its order that they be charged instate tuition will give Texas every financial incentive to end that preemption by changing its law so that illegal aliens no longer reap the windfall of instate tuition. It is high time the courts recognized the preemptive effect of what Congress has done, and turn off this particular magnet for illegal entry, and we hope the Fifth Circuit affirms the district court’s judgment.”

The case is Young Conservatives Foundation v. Smatresk, No. 22-40225 (Fifth Circuit).