Does The Rule Of Law & A Sense Of Fair Play Matter Anymore? The Debate About In-State Tuitions For Illegal Immigrants

Does the rule of law matter anymore? Or do we now apply it selectively based on interest group policy preferences? Is the latter consistent with longstanding American principles? Is it consistent with a sense of fair play?

Aside from the national security issue, the primary philosophical and policy issue at the center of of the illegal immigration debate is whether America will honor the rule of law in our day-to-day life. The specific issue of granting in-state tuition to illegal immigrants here in Rhode Island is a subsidiary question, directly related to the broader rule of law issue. This broader issue is also one many people do not want to debate, especially those whose difficulties with the issue begin with an Orwellian inability to use the two words "illegal" and "immigrant" in the same sentence. The illegal immigration debate will never be properly resolved as long as the rule of law issue is avoided.

The unspoken, but crucial, impact of selectively applying the laws of our country means that any sense of fair play that would otherwise exist is gone. It is replaced by a world where outcomes are driven by the raw use of power, by who has the ability to vote favors-of-the-day for the desired interest groups. It is no less true that those favors will only last as long as political power remains unchanged, which then has the consequence of intensifying political combat. Politics morphs from being driven by eternal guiding principles such as those in the Declaration of Independence to trench warfare of a political nature, a change which only serves to polarize further our society.

Why did Martin Luther King, Jr.'s moral crusade for black civil rights in the 1960's have such a powerful impact? To have any meaning, the rule of law requires laws be applied equally to all Americans. King forcefully reminded us how the principles of the American Founding took our society to an unprecedented level of freedom and equality. Nonetheless, he noted the job was not finished because black American citizens were not being treated with the equality that was their natural right as Americans. King knew what all students of history know - that it was a self-evident, albeit not then practiced, truth that such rights of black citizens preceded even the existence of our government because all of us are endowed by our Creator with those inalienable rights. This is the proper interpretation of how King's moral crusade relates to the illegal immigration debate, a topic which was discussed under Core Issue #2 in the posting, Identifying Four Core Issues Underlying the Immigration Debate.

The debate about illegal immigration has also highlighted how our government - under both political parties - has consistently chosen not to enforce existing laws or to pass laws in conflict with existing laws, thereby further undermining the rule of law. That begs the question of what is the proper role of government, a question addressed by Nobel Laureate Milton Friedman, in the second chapter of his classic work, Capitalism & Freedom:

...a good society requires acceptance by the players both of the rules and of the umpire to interpret and enforce them, so a good society requires that its members agree on the general conditions that will govern relations among them, on some means of arbitrating different interpretations of these conditions, and on some device for enforcing compliance with the generally accepted rules...In both games and society also, no set of rules can prevail unless most participants most of the time conform to them without external sanctions; unless that is, there is a broad underlying social consensus. But we cannot rely on custom or on this consensus alone to interpret and to enforce the rules; we need an umpire. These then are the basic roles of government in a free society: to provide a means whereby we can modify the rules, to mediate differences among us on the meaning of the rules, and to enforce compliance with the rules on the part of those few who would otherwise not play the game...

As an alternative to the clarity and logic of Friedman's argument, you can always turn to the sloppy and Orwellian use of words at RIFuture. Be sure to read the comments section.

It is in this broader context of the illegal immigration debate that a legislative proposal to grant in-state tuition rights to illegal immigrants has arisen.

Today's ProJo carries a news article on the latest developments on this proposed law:

If states have a responsibility to provide all students, even illegal immigrants, with a solid education, does that responsibility also include a college education?

That was the question in a State House hearing yesterday, as lawmakers and advocates debated extending in-state college tuition rates to all Rhode Island high-school graduates, regardless of immigration status. Currently, noncitizen students must provide a permanent resident card to qualify for in-state tuition.

"Limiting access to education has never proved to be a good thing for any country or state," said state Rep. Grace Diaz, D-Providence, who sponsored the in-state tuition bill...

The two-hour hearing included some emotionally charged moments...At one point, state Rep. Arthur J. Corvese, D-North Providence, locked into a heated exchange about racism with Wilfred Ordonez, a community organizer for Progreso Latino.

"Racism is real, and it has existed throughout the entire history of our country," Ordonez told the committee.

"There can be a legitimate dialogue and discourse without any racist motivation," Corvese responded. "You cannot run to the racist card every time someone disagrees with your opinion."

Major questions remain about the bill's financial impact. The difference between in-state and out-of-state tuition is $7,312 a year at Rhode Island College and $12,642 a year at the University of Rhode Island...

URI President Robert L. Carothers testified that the bill would not cause problems with classroom capacity at the university. However, he asked the committee to consider removing a sentence that would prohibit public institutions of higher education from sharing information on students' immigration status with "any governmental or nongovernmental agency." Carothers said the university is required to report such information to the federal government, and faces penalties if it doesn't...

Rhode Island will, no doubt, be watching a federal court case challenging a similar law in Kansas and a lawsuit in California challenging that state's policy of allowing illegal immigrants to pay in-state tuition. The plaintiffs in the California case, three dozen University of California students, claim the policy discriminates against out-of-state students who are U.S. citizens...

An earlier posting clarified the relevant issues:

If you want a local example of how our General Assembly is also blurring the distinction between legal and illegal immigration, read how this bill grants illegal immigrants the right to pay in-state tuition costs at our state colleges - and then says the schools cannot share their information on the illegal status about such people with any government agencies. Wink, wink. Why pass a new law if we are going to knowingly not enforce existing laws? Now take a step back and think about the implications of this proposed bill: An American citizen born and raised in Massachusets will pay more to attend URI than an illegal immigrant. In other words, we are economically penalizing a law-abiding citizen and economically rewarding a law-breaking non-citizen. And that is just one small example of how illegal immigration and current amnesty proposals undermine the rule of law - and the sense of fair play - in America. All of us should send that message to the bill's authors: Assembly members Grace Diaz, Joseph Almeida, Thomas Slater, and Anastasia Williams.

Unfortunately, the granting of in-state tuition rights to illegal immigrants is not limited to Rhode Island. As Peter Kirsanow, a member of the U.S. Civil Rights Commission, writes:

They're doing so in clear defiance of congressional intent to make such preferential treatment unlawful. Title 8 Section 1623 of the U.S. Code (part of the Illegal Immigration Reform Act of 1996) provides in pertinent part:

Limitations on eligibility for preferential treatment of aliens not lawfully present on the basis of residence for higher education benefits

a) 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 political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such benefit without regard to whether the citizen or national is such a resident.

So the problem is actually worse than expected here in Rhode Island. The introduction of this bill by these four legislators not only violates all sense of fair play, it violates Federal law. What kind of example are they setting for the residents of our state? For our children? It is an outrage that only encourages further disrespect for the rule of law.

The debate about the rule of law can be explained as a gut sense among Americans that we believe in fair play, in a level playing field. Many of us who are citizens and have spent our lifetime living by the rules of our country are offended that lawbreaking illegal immigrants are being granted additional unearned favors by legislators who don't even have the courage to enforce existing laws.

The overriding issue here is not about education. It is about whether we will be a country that lives by the rule of law, by a sense of fair play that provides the basis for all Americans to live together peacefully.