Kris W. Kobach, Immigration Nullification: In-state Tuition and Lawmakers Who Disregard the Law, 10 N.Y.U. J. Legis. & Pub. Pol’y 473 (2006)
It has become a favorite refrain of state legislators and city council members who are confronted with problems arising from illegal immigration to place blame on the federal government. “If only the federal government would deal with this country’s illegal immigration crisis, then we would not be faced with the problems that we have in our area,” or so the complaint goes. n1 Interestingly, this complaint comes both from opponents of illegal immigration who wish to see stronger enforcement, as well as from illegal immigration apologists who advocate amnesties and a loosening of immigration laws. The premise for both sides is: “We state and local legislators are willing to help, but we need to see leadership and action at the federal level first.”
Congress has at times been paralyzed by division on immigration legislation. n2 But Congress has also acted on many occasions to pass sweeping immigration reforms. n3 The untold story – one that makes such complaints by state and local legislators ring hollow – is what happens when state and local legislators confront federal immigration laws that they do not like. Recent years have seen instances of outright repudiation and violation of federal law by such lawmakers, the Supremacy Clause of Article VI of the United States Constitution notwithstanding. n4 This article describes what is perhaps the most brazen case of state legislators defying federal immigration law – the offering of resident tuition rates to illegal aliens at state universities. n5
I trace the history of this confrontation, beginning with … read more.