Recent political discourse on undocumented immigration has triggered questions regarding the extent to which the individual states are preempted from making undocumented immigrants eligible for certain state benefits. In-state tuition, in particular, has become a site of contentious debate. This Note examines whether states may, consistent with federal law and federal preemption principles, make undocumented students eligible to matriculate at public universities at the in-state rate. Part I of this Note provides historical background on the development of the federal exclusivity principle in matters of immigration law. Part II examines the federal laws against which immigrant in-state tuition laws are analyzed for preemption. Part III draws insights from recent cases from the U.S. and California Supreme Courts involving express preemption clauses. Finally, Part IV concludes that immigrant in-state tuition laws not based on residence within the state are constitutional.
Alexander F. Rabanal,
Educating the Underground: The Constitutionality of Non-Residence Based Immigrant In-State Tuition Laws,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol88/iss3/14