The 10th Amendment Defense

In the last debate in Tampa, Rick Perry was attacked because Texas allows illegals to pay in-state tuition fees to enroll in a state college. Michelle Bachmann said this

I think that the American way is not to give taxpayer subsidized benefits to people who have broken our laws or who are here in the United States illegally.

Either she overlooked a 1982 Supreme Court decision, Plyler vs. Doe, or she is unaware of it. The court ruled that Texas and the rest of the country must educate illegal immigrant children free of charge in public schools. Some of the most vocal illegal immigration opponents don’t oppose the decision. But they say higher education is different, because it is tuition-based.

Rick Perry defended himself by saying

I’m not for the DREAM Act that they are talking about in Washington D.C. that is amnesty. What we did in the state of Texas was clearly a states right issue. And the legislature passed with only four dissenting votes in the House and the Senate to allow this to occur.

Under the U.S. Constitution, the government of the state of Texas cannot make laws regulating the naturalization or deportation of residents. Only the U.S. Congress can do that.

Attorney David Rogers argues that taxpayers suffer because of the law. It’s unfair, he added, that the state gives benefits that students from Oklahoma or other states can’t receive.

A challenge to a similar law in Kansas failed in 2005 after a federal judge found that out-of-state college students had no standing to challenge the law there, since they had not been harmed by it.

Rogers said states are not supposed to offer benefits to illegal immigrants that are not offered to eligible U.S. citizens. But University of Houston law professor Michael A. Olivas said federal law clearly allows states to draft their own policies, and he believes the Texas case is similar to the Kansas one. “It is a matter for states to determine,” he said. “In-state status is a state issue.”

Illegal immigrant students were never barred from enrolling in Texas colleges, but the higher tuition price tag for nonstate residents often meant they couldn’t afford to attend. State Rep. Leo Berman, R-Tyler, has tried sponsoring a bill denying education benefits to illegal immigrants in the past, but he later realized that went against the Plyler precedent.

The bottom line for me is that a Governor must deal with issues that are very specific to the people living in his state, and this does not always translate into something for the federal government to take up. In that respect both Mitt Romney with his Massachusetts health care, and Rick Perry with his Texas in-state tuition are resorting to 10th amendment rights as their defense. Now one of these two men may very well win the GOP nomination to be President. I personally lean toward Rick Perry as the more conservative of the two. In either case I am grateful that both have embraced the 10th amendment, and want the federal government to intrude less in my personal life.

Cross-posted at Unified Patriots