Two decades of favoring illegal aliens with in-state college tuition rates — a benefit denied U.S. citizens — came to an end in Nebraska on Wednesday, when a federal court declared the practice invalid under the Constitution.
The court’s ruling comes after the U.S. Department of Justice filed its complaint on April 21, challenging Nebraska laws that provided in-state tuition and financial assistance to aliens unlawfully present in the United States. The same day, the DOJ and the State jointly filed a consent decree asking the court to declare the laws in violation of the Supremacy Clause and permanently block the state from enforcing them.
You might think the litigation would end there, seeing how both sides were in agreement. But it did not. The Nebraska federal district court ordered full briefing from the parties before ruling. The proposed decree drew opposition from two nonprofit groups and state Senator Dunixi Guereca, all of whom filed briefs urging the court to reject it.
The two nonprofits — True Potential and Orel Alliance — also sought to intervene and contest it, but the court denied their request. They had shown “nothing more than their disagreement” with the State’s position, Judge Brian Buescher concluded, and were therefore not entitled to intervene.
In his 54-page ruling, Judge Buescher laid to rest the objections of both the senator and the proposed intervenors — including a challenge to the court’s jurisdiction to rule on a case where both parties agreed on the outcome — before turning to the merits. He concluded the consent agreement was fair and reasonable, and not the product of “friendly lawsuit” collusion.
Judge Buescher also denied the nonprofits’ request to pause proceedings pending their expected appeal to the 8th Circuit, writing that allowing the unconstitutional statutes to remain on the books “would be contrary to the public interest.”
And on the merits, “the law is clear,” he wrote: “The Nebraska statutes establishing residence requirements for illegal aliens to obtain in-state tuition, while leaving United States citizens from other states to pay full out-of-state tuition, blatantly violate … federal law.”
Those laws are preempted by federal statute, which explicitly states: “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State . . . for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit . . . without regard to whether the citizen or national is such a resident.”
Judge Buescher entered the consent decree in full. His order declares the laws invalid under the Supremacy Clause and permanently enjoins Nebraska from enforcing them.
For years, illegal immigrants came to this country knowing that in states like Nebraska, all kinds of benefits, including scholarships and loan subsidies in addition to in-state tuition rates, lay in store — for them, but not for U.S. citizens.
Last year, the DOJ began to crack down on these unlawful incentives to illegal immigration, which are offered in more than 20 states. We have covered its campaign from the beginning — starting with Texas. To date, the DOJ has filed nine lawsuits.
Consent decrees have been entered in Texas, Kentucky, Oklahoma, and now Nebraska. The first three are under appeal.
And in the likely event that the Nebraska ruling is also appealed, the DOJ now has Judge Buescher’s 54-page opinion to build on.
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