Lawmakers Gone Wild? College Residency and the Response to Professor Kobach

Abstract

In some ways for those who have proposed comprehensive immigration reform, it has been a "perfect storm" and witches' brew of anti-immigrant factors, especially anti-Mexican sentiment, and while the November, 2006 elections appeared on one level to ameliorate some of these resentments, there is obviously a substantial interest in the larger community and a simmering anger towards immigrants, especially those who are undocumented or who are perceived to be undocumented, and these flare up without warning or provocation.

It is my thesis and response to Professor Kris Kobach's thesis that state, county, and local ordinances aimed at regulating general immigration functions are unconstitutional as a function of exclusive federal preemptory powers. If purely state, county, or local interests are governed and if federal preemptory powers are not triggered, such ordinances could be properly enacted, provided they are not subterfuges for replacing or substituting for exclusive federal authority. As one example, purely state benefits can be extended or withheld to undocumented college students, because tuition benefits and state residency determinations are properly designated as state classifications, which can incorporate but cannot determine immigration status.

Keywords: Immigration, Public Benefits, College, Residency