Mike Kueber's Blog

November 28, 2011

The Rising Star called Marco Rubio and in-state tuition for illegal immigrants

Rick Perry’s presidential campaign started foundering when he defended in-state tuition for illegal immigrants in a presidential debate.  I previously blogged that he had touched a new 3rd-rail in Republican politics, and questioned why Newt Gingrich would recently venture near that 3rd rail by arguing for humane treatment for long-term illegal immigrants.  (As I recall, John McCain got in trouble for using the same term, “humane,” during his first presidential run.  Amazing that “humane” can be a bad thing.)

An article in today’s Daily Beast touched on the in-state tuition issue in the context of providing an interesting up-dated profile on the Republican Party’s Hispanic Rising Star, Marco Rubio.  The article is written by Howie Kurtz of Reliable Sources, and he goes out of his way to present Rubio’s hardline position in a soft, sensitive way:

  • “This is not just a theoretical argument,” Rubio told me during a recent visit to his Capitol Hill office, emotion creeping into his voice. “You’re talking about people’s neighbors, people’s moms, people’s sisters, people’s brothers, their loved ones, maybe their spouse or their children. You know kids that have grown up here their entire lives but are undocumented.” His dark eyes flash as he imagines the plight of those who cross the border illegally: “If your kids are hungry and hurting and living in a dangerous environment, there’s very little you won’t do to help them.”

By contrast, Kurtz states that Herman Cain “muses publicly about an electrified border fence that would kill trespassers. Michele Bachmann says she wouldn’t lift a finger for the children of people in this country illegally because ‘we don’t owe them anything.’”

But the bottom line for Rubio and the others on this issue of in-state tuition is essentially the same as other Republicans, yet Kurtz buries this fact in the penultimate paragraph of a long article and attributes it to a highly partisan Democrat:

  • But Rubio himself has made a sharp right turn in abandoning his earlier support for tuition breaks for children of illegal immigrants. “He changed his mind on that because he was so focused on pandering to the Tea Party that he abandoned some core principles,” says Debbie Wasserman Schultz, the Florida congresswoman who chairs the Democratic National Committee.

All of thus suggests that virtually all Republican candidates, including Rubio, consider in-state tuition for illegal immigrants to be a 3rd-rail of Republican politics.  However, Kurtz concludes is article with the following:

  • Rubio’s response? A delicate high-wire act. “It’s not my position that has changed. The country has changed,” he says, adding that Americans are feeling less generous toward immigrants in tough economic times….  He leaves the door ajar to doing something to help “high-achieving” students brought to the U.S. through no fault of their own, but then pivots to argue that “people are taking advantage of America’s generosity.” For a Republican with a national profile, it’s a very thin tightrope indeed.

I suspect Newt Gingrich is similarly feeling this “very thin tightrope,” and we shall soon find out if he is able to walk it.

November 3, 2011

The DREAM Act and Texas

Filed under: Uncategorized — Mike Kueber @ 3:16 pm
Tags: , , , ,

Texas is supposedly on the front-lines of the war against illegal immigration, but sometimes it appears that the state wants to desert the war and claim conscientious-objector status.  The best example of this pacifist streak is the 2001 legislation that afforded in-state college tuition to the state’s illegal immigrants.  The legislation, which was passed almost unanimously, was signed into law by Rick Perry, but was really part of the legacy of the state’s compassionate conservative, George W. Bush, who was taking to Washington his message of education and “comprehensive immigration reform” – i.e., a path to citizenship.

Perry had no reason to oppose the legislation, and he went along with it, not knowing that this noncontroversial position would, more than any other position, torpedo his presidential campaign in 2011.  By 2011, the Republican electorate had decided that any compassion toward illegal immigrants was equivalent to giving aid & comfort to the enemy.

For example, at a congressional candidate forum in Del Rio in 2010, the candidates were asked to give a “yes” or “no” response to a one-word question – amnesty?  All of the candidates except me quickly said “no.”  I was booed when I asked the questioner to define amnesty.

Later in 2010, the federal DREAM Act almost passed, and the swing vote seemed to belong to Texas Senator Kay Bailey Hutchison.  Although Hutchison was one of the Republican Party’s most moderate senators, she was in the process of retiring from the Senate to run against Rick Perry for Texas governor and her positions were tacking strongly to the right.  She eventually opposed the DREAM Act and it died.

You can imagine everyone’s surprise a few months later, during the Republican presidential debates, to learn that Texas had passed its own so-called DREAM Act in 2001, Rich Perry has signed it, and, most surprising of all, he continued to champion it on national TV.  (I guess he would rather be stubbornly wrong that be guilty of changing his mind – i.e., flip-flopping.)

For the past few weeks, during countless interviews and debates, Perry has consistently defended the Texas DREAM Act.  In one debate, he even went so far as to call opponents of the Texas DREAM Act as “heartless.”  But Perry has never been asked to explain how he can support the Texas DREAM Act at the same time that he is opposing the federal DREAM Act.  This is especially incongruous when Perry says that the Texas DREAM Act is directed at those illegal immigrants who want to become citizens, but then he opposes the passage of a federal law that would allow them to become citizens.  You can’t have it both ways.

An article in today’s San Antonio Express-News reported on a local girl who is the so-called “poster child” for the federal DREAM Act.   According to the article, immigration officials have decided to drop the deportation case against this young woman, based on new Obama guidelines for focusing department resources on the deportation of bad illegal immigrants, not good ones.  Not surprisingly, most of the reader comments were outraged at Obama’s decision to create a back-door to amnesty and wondered how this individual would manage in a country where she would not be able to legally secure a legitimate job.

An article in the Texas Tribune earlier this week revealed that, although the Texas version of the DREAM Act passed almost without objection in 2001, the law is no longer popular.  (I wonder if Perry knew this.)  According to a Tribune survey on whether in-state tuition should be provided to illegal immigrants, 28% said yes, 55% said no, and 17% said they didn’t know.  Not surprisingly, the leading contender to be our next governor, Lt. Gov. Dewhurst, has said that if he were governor in 2001, he would not have signed the bill.

The Texas Tribune survey also asked Texans what they thought of the federal DREAM Act – i.e., a path to citizenship for those illegal immigrants who go to college or enlist in the military.  Although the majority of Texans oppose the federal DREAM Act, they are less opposed to the federal DREAM Act than they are too the Texas DREAM Act.  Slightly more than half — 51 percent — oppose the policy, including 36 percent who strongly oppose it.  Another 39 percent favor the proposal, 19 percent of them strongly.

Although Mitt Romney is being damaged by charges of flip-flopping, a subjective partisan criticism, Perry is guilty of more serious defects – irreconcilable positions and an unwillingness to reconsider his positions despite significantly changed circumstances.  I’m sticking with Romney.

October 3, 2011

An open letter to the Texas Tribune’s Ross Ramsey on Rick Perry’s DREAM Act

Mr. Ramsey, your article, which has a nationwide platform through the New York Times, misrepresents the truth to the rest of America.

Although Texas was exceptionally accommodating to illegal immigrants during the “compassionate conservatism” of Bush-43, at other times it has not been as generous.  Please recall that the Supreme Court’s 1982 landmark Plyler decision overturned Texas laws that attempted to prevent illegal immigrants from receiving a K-12 public education.

And your proof of the current laxity is based on nothing more than your anecdotal impression of a conference in Austin.  Do you have any surveys of Texas’ current attitude on the subject?  I believe the current attitude in Texas is better reflected by Dewhurst’s recent statement that he would have vetoed the in-state tuition law if he had been governor.

Furthermore, I keep hearing (from Perry and others) that high-school educated illegal immigrants will become a drain on the Texas economy if they are not encouraged to receive a college education.  That doesn’t make sense because, according to a plethora of news reports, college-educated illegal immigrants are already blocked from securing college-type jobs.  If they can’t obtain college-type jobs, what good is it for Texas to get them college-educated?  They are already able to secure high-school type jobs, and that will probably continue unless e-Verify become mandatory.  An illegal immigrant in a high-school type jobs is not a drain on the Texas economy, and we already have enough citizens to fill our college-type jobs.

I support the DREAM Act, but it needs to be a part of a comprehensive solution (including enhanced e-Verify) that eliminates magnets for continued illegal immigration.  Perry’s 2001 law was a magnet, and as such it was part of the problem, not part of the solution.

September 30, 2011

In-state tuition for illegal immigrants

Filed under: Issues,Politics — Mike Kueber @ 2:25 am
Tags: ,

A few days ago, I blogged about a caller to Mark Levin’s talk show who said there was a federal law that prohibited states from granting in-state tuition to illegal immigrants, regardless of where they lived.  By doing some research, I found the following federal law (8 U.S.C. § 1623):

  • Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.”

Although the language in this statute seems exceptionally clear, the caller to Levin’s show said that a California state court had decided to allow in-state tuition for illegal aliens.  He suggested, however, that the courts in some other state might interpret the statute differently.

Because it was hard to imagine how a court could read the federal law as anything but a ban on in-state tuition, I went looking for the California decision and found it earlier today (Martinez v. Regents, 11/15/2010).  Actually, I found an analysis of the decision conducted by the Connecticut OLR.  The analysis was ostensibly done for the help of legislators in Connecticut who were considering associated legislation.

According to the OLR:

  • Holding.  The California Supreme Court held that California’s law did not award in-state tuition on the basis of residence and thus did not violate 8 U.S.C. § 1623.
  • Analysis.  The bulk of the court’s analysis focused on the California law’s relationship to 8 U.S.C. § 1623. The court stated that if Congress had wanted to ban illegal immigrants from receiving in-state tuition, it could have easily done so. Instead, noted the court, while the federal law prohibits in-state tuition from being awarded to illegal immigrants on the basis of residence, it is not a complete ban; it allows states to award in-state tuition based on other factors.  The court found that the state law awarded in-state tuition on factors besides residence, such as attending a California high school for three years and earning a diploma or its equivalent. It overruled the Court of Appeal’s holding that the attendance and graduation requirements were surrogates for residence.

Although the decision by the California Supreme Court was unanimous, I would be surprised if any nonpartisan jurists would agree.  I don’t know how the federal statute could be any clearer that it intended to ban illegal immigrants from receiving in-state tuition.  The lower court had correctly characterized the language in the CA statute as a patent attempt to evade the intent of the federal law.

Not surprisingly, the Texas law is patterned after the California law, or vica versa.  But Texas judges are less partisan that those in California and a different result could be expected if a case were brought here.

September 27, 2011

Rick Perry – who has no heart?

Filed under: Issues,People,Politics — Mike Kueber @ 4:25 pm
Tags: , ,

Rick Perry has caught a lot of flak for his most recent debate performance.  Although he had numerous low points, his lowest was his defense of in-state tuition for illegal immigrants:

  • If you say that we should not educate children who come into our state for no other reason than that they’ve been brought there through no fault of their own, I don’t think you have a heart. We need to be educating these children, because they will become a drag on our society.”

There are at least three problems with this response – one was unavoidable, one was easily avoidable, and one was inexcusable:

  1. Unavoidable.  The unavoidable problem was that in 2001 Perry had signed-off on a bipartisan law, but now he is faced with partisan primary voters.  At the Christian Science Monitor cogently described – “For Perry, his state’s version of the Obama administration’s ‘Dream Act’ proposal for helping students without legal immigrant status has become like ‘RomneyCare’ – a state-specific position that’s hard to justify in the context of today’s national debate on such issues.”
  2. Avoidable.  The avoidable problem was that Perry was unable to speak clearly.  Perry knew that this question was coming, so he should have been able to rehearse an articulate response.  Instead he gave a response with jumbled syntax.
  3. Inexcusable.  Perry knew that many Republican voters disagreed with his position, but instead of trying to persuade them that his position was reasonable, he criticized them for not having a heart.  I don’t think he read Carnegie’s How to Win Friends and Influence People.

Perry should have known thta most conservatives are already ultra-sensitive to the charge of being uncaring because liberals have been accusing them of that for years.  That’s why you would think that a conservative would never sink to that level in defending a policy position.  What was Perry thinking?

Mitt Romney wasted no time in providing an effective rejoinder.  The next day during a CPAC speech he said, “I think if you are opposed to illegal immigration, it doesn’t mean you don’t have a heart. It means you have a heart and a brain.”

What is the right answer?  Perry’s position is consistent with the 1982 Supreme Court decision – Plyler v. Doe – that required Texas to provide K-12 schooling to illegal immigrants.  The rationale for the decision was that to deny such schooling would result in “the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime.”  Although liberal Justice Brennan writes better than Perry speaks, they are saying the same thing.

The vast majority of Republican voters, however, disagree with Brennan and Perry.  Much of the immigration talk in the debates has gravitated toward the elimination of magnets that are attracting illegal immigrants.  A job is the biggest magnet, but others include education, medical care, and birthright citizenship.

Furthermore, Brennan’s decision in Plyler v. Doe was limited to K-12 education, while Perry and the Texas legislature have extended it to a college education.  As noted in Wikipedia:

  • Other court cases and legislation … have allowed some states to pass statues that deny undocumented students eligibility for in-state tuition, scholarships, or even bar them from enrollment at public colleges and universities.”

Recently, while listening to the Mark Levin talk show on radio, a caller suggested to Mark that federal legislation not only allows states to deny in-state tuition to illegal immigrants, it requires them to deny it.

By doing some basic legal research, I was able to find the law – Public Law 104–208 – Division C – Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  Section 505 is titled, “Limitation on eligibility for preferential treatment of aliens not lawfully present on basis of residence for higher education benefits.”  The section reads as follows:

  • Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.”

The law appears clear, but the Mark Levin caller, who was a lawyer, said that several years ago a California state court had thrown out his case brought to enforce the law, but he was optimistic that a case brought today in another state would have good prospects for success.

Regardless of whether the federal law could pre-empt Texas’s version of the DREAM Act, Perry will need to do a better job in explaining his position.  I suggest that, instead of calling those who disagree as heartless, he should say that the issue is a close call.  He understands that the magnets and sanctuaries have to be eliminated, but that he also has to deal humanely with the young people in his state who were brought here as children.  As with his inoculation decision, Perry’s concern for the kids carried the day.

That’s what I’d say.

November 18, 2010

In-state tuition for illegal immigrants – new developments

California is one of a dozen states, including Texas, that charges in-state tuition to students who are illegal immigrants and out-of-state tuition to students who grew up in other states.  Yet there is a federal law that prohibits giving illegal immigrants educational benefits based on residency.  Once you get by the states-rights issue, you might wonder how those dozen states do that.  

In America, where armies of lawyers figure out ways to avoid the spirit of a law, twelve states have enacted laws that charge in-state tuition to anyone who attended high school in the state.  These laws ingeniously enable most illegal immigrants in those twelve states to qualify for in-state tuition.  Several out-of-state students in California were upset at having to pay more than $33,000 in annual tuition instead of the $10,000 in-state tuition, and they sued California for violating federal law.  Although the students prevailed in a lower court, the California Supreme Court earlier this week ruled unanimously that the California law-avoidance scheme was fine.  The students say they will appeal and the United States Supreme Court will get the last word on this matter.

As I mentioned above, Texas has a law similar to California’s, but the Republican electoral landslide has generated a lot of interest in repealing it.  Just this week, the Texas A&M student senate went on record as favoring the repeal, but the student body president vetoed the senate’s action, claiming that the senate had no business opining on the subject.  (Sounds like the San Antonio City Counsel opining on the AZ illegal-immigration law.)  Earlier today the student body president’s veto was upheld, according to the Texas Tribune.  http://www.texastribune.org/texas-education/higher-education/am-students-vote-state-tuition-for-immigrants.  There was even a lengthy report on Fox News.

We obviously need to develop a comprehensive plan to deal with immigration.  The partisan stalemate reminds me of America’s tax-and-spend policies – i.e., one party insists on keeping high spending and the other party insists on keeping taxes low.  Well, that is dysfunctional.  We have the same problem with immigration – i.e., one party wants to banish all illegal immigrants and the other party wants to treat them like respected guests who are welcome to stay.  I think there needs to be some sort of compromise like the DREAM Act, but only if other forms of sanctuary in this country are eliminated.  For example, there are only two states (Georgia and South Carolina) that limit the enrollment of illegal immigrants in their colleges, and the United States Supreme Court has required that all states enroll them in elementary and secondary schools. 

We will never control our border if sanctuaries are allowed to flourish.