Tuition ruling on shaky legal ground
The decision by Superior Court Judge Arthur Anderson that socalled dreamers, young adults brought here illegally as children, can be eligible for in-state tuition was hailed by those who think they should be. I agree that they should be. Nevertheless, Anderson’s decision is on shaky ground legally.
As with most things former Senate President Russell Pearce had a hand in, the ballot proposition banning in-state tuition for illegal immigrants was less than precise.
In all other Pearce measures to deny public benefits to illegal immigrants, “lawful presence” was required. An “employment authorization document” is one of the items state law says show “lawful presence.”
Dreamers who have qualified for President Obama’s deferred prosecution program designed for them are given a renewable two-year work permit. So, for most purposes under state law, they can demonstrate lawful presence.
This is the reason I never understood why dreamers wanting driver licenses sued in federal court under equal protection grounds. They were entitled to a driver license under state law, contrary to former Gov. Jan Brewer’s edict not to issue them one. A state lawsuit would have been a straighter and quicker path to getting them.
However, when it came to referring a ballot measure to deny illegal immigrants in-state tuition, Pearce used a different term. Instead of requiring “legal presence,” the ballot measure required “lawful immigration status.”
Was this change in the standard purposeful? Did Pearce mean to create a different standard for in-state tuition? Or was it inadvertent and accidental?
With Pearce you never know. And you still don’t know even after you ask him and he answers. Regardless of what you ask him, all you learn is that he really, really, really loves the Constitution and really, really, really loathes illegal immigration.
Regardless of whether purposeful or accidental, there is, nonetheless, a different statutory standard for eligibility for in-state tuition and eligibility for other state public benefits.
In his decision, Anderson asserts that the terms “legal presence” and “lawful immigration status” mean the same thing and are interchangeable. And hence, the work permit satisfies the state statutory requirement for instate tuition.
But they do not mean the same thing and aren’t interchangeable. In fact, the constitutionality of Obama’s deferred prosecution program for dreamers depends on there being a difference.
The executive branch does not have the constitutional authority to establish new immigration categories. That requires congressional action.
So, the Obama administration has gone out of its way to proclaim that it has not changed the immigration status of dreamers. Instead, it is using its enforcement discretion to defer prosecuting them for their illegal status.
Now, there are those (including me) who think that the line the administration is drawing is hokum. True prosecutorial discretion doesn’t begin with an application process and doesn’t include infinitely renewable work permits. As a practical matter, the administration has established a new immigration category.
Nevertheless, the constitutionality of the program depends on the legal fig leaf that, contrary to Anderson, there is a difference between granting “legal presence” and providing “lawful immigration status.”
It may not matter that Anderson’s decision rests on such shaky legal ground. It is entirely conceivable that state judges will conclude that “lawful presence” and “lawful immigration status” mean the same thing for determining the eligibility of dreamers for in-state tuition in Arizona, while federal judges conclude that they mean entirely different things in determining the constitutionality of Obama’s deferred prosecution program for them.
That would yield a policy result I support. Dreamers should have the threat of deportation removed and should be eligible for in-state tuition.
But every time judges engage in these contortions the rule of law suffers another crack.