October 4, 2011
Analyzing the Civics of the Board of Governor's Illegal Immigrant In-State Tuition Policy Change
Determining whether it was a legitimate exercise of authority for the Rhode Island Board of Governors for Higher Education to make certain illegal immigrants eligible for in-state tuition at RI public colleges and universities takes us into a murky borderland in the civic landscape occupied by "public corporations" and "quasi-public entities" that have been created by governments to provide "non-public" goods or services. (In economic parlance, a "non-public" good or service is one that can be parceled out in a manner such that those who want it can spend what they want for it, and those don't want it don't have to buy any at all).
Whether government should ever create “public corporations” or other "quasi-public" bodies for the provision of private goods and services is a valid question in itself, but given that such entities are already with us and making decisions that impact people's lives, the immediate focus needs to be on whether their actions directly violate the core principles of democratic governance. In the case of the BoGfHE’s illegal immigrant tuition “policy change”, this means making certain that the Board has not exceeded its authority by doing something that must be a legislative function, and that it has acted in a way that was a reasonable exercise of its statutory mandate.
To address these issues, it is useful to consider a "public corporation" that deals with a less controversial good or service (at least in this century) such as a state-run liquor store. While the legislature authorizes and defines the purpose of a state-run retailer, it is not left to a legislature, or a committee of legislators, or even a board that is hired and fired directly by the legislature to make day-to-day decisions on matters such as pricing and inventory. Indeed, allowing a legislature to directly exercise executive authority in such a manner would be the violation of the separation of powers principle.
Likewise, allowing the Board of Governors for Higher Education to manage tuition pricing is not in inherent conflict with the principle of separation of powers, so long as the board is acts in a manner that does not conflict with the law. And since Rhode Island law makes no significant mention of immigration status in the context of public higher education and Federal law is unclear, the Board's action is consistent with current law.
Of course, because a “public corporation” can do something does not mean that it should, and there is a strong case to be made that the unelected board of a public corporation should not be imposing measures which the legislature has had before it but decided not to enact. The flip-side of this is that if a legislative majority feels that the Board has stretched an ambiguity in the law beyond reasonableness, it is their right -- and their duty -- to clarify the ambiguity.
The legislature does not have to wait for the Board of Governors to rescind its tuition policy change to begin a move to reverse it. It is not the legislature that has to make its actions conform to those of the Board of Governors; it is the Board of Governors that must set policies that conform to the law. If a new section is added to Rhode Island law regarding public higher education, perhaps in the form of language similar to section 40-6-27.1(b) of current RI law, which prohibits giving certain public assistance benefits to illegal immigrants, then the BoGfHE would have to change its policies in response.
The action taken by the Board at this stage is no more permanent than any preliminary budget recommendation for spending money in the next fiscal year, and it is certainly not written in stone that any government department, never mind a government created corporation, must get everything that it asks for. Indeed, for those inclined to view this purely as a budgetary and fiscal issue, one option the legislature could pursue would be to cut the budget of the BoGfHE -- a budget item separate from that of any actual educational institution, and that costs Rhode Islanders about $7 million annually in operations and personnel -- by the amount needed to make-up the difference between in-state and out-of-state tuition for the number of illegal immigrants expected to be admitted to RI colleges.
In the end, if a 3/5 majority of Rhode Island legislators think the Board of Governor's decision on in-state tuition for illegal immigrants is a bad idea, they can only be bypassed in our system of government if they allow themselves to be. (I am assuming that the current Governor of Rhode Island would veto a standalone bill on this subject, necessitating a veto override, although this matter would also be germane for inclusion in the annual budget bill, which could allow it to passed as part of the same 2/3 majority that has to approve the budget). Approval of the legislative leadership should not be any factor; if a supermajority wants a bill passed, there are various ways a bill can be brought to the floor, if the members value having something passed more than they value following leadership dictates. And if the voters believe that the Board's decision should be reversed, but their legislators refuse to act for whatever reason, then the people need to consider electing new legislators who will.
I am afraid this is over analyzing what is basically a "feel good" by the legislature. They thought it would buy them some votes, that is as far as the analysis (this is another case when I am reminded that you can't say analysis without saying anal) needs to go.
The more we remove "remove content" from citizenship, the more valueless we make it.
I meant no disrespect to Carroll in my comments above. Still, I am puzzled by all this. We do have a provision for "foreign students" (there is no evidence that the preferred class are even "citizens in waiting"). I assume that foreign students pay "out of state" tuition. I cannot subscribe to the attitude of "Well, we've got them here, we have to bear the load, let's make it as easy as possible". I recall that in the 80's there were only 3 "sanctuary cities", Cambridge, Berkeley and one other. Is it simply that we are outsourcing cheap labor? If cheap labor is what we need, why are we educating them?
I'm not sure where you are coming from, Warrington. The legislature has never come out in favor of in-state tuition for illegal immigrants, but the BoGfHE is trying to take advantage of a gap in the letter of the law to implement their agenda.
The legislature now has to decide whether they are going to fill the gap or not, and they don't have to wait for the Board to change its mind, or for the House Speaker or Senate President to decide if they want address the issue. They would need a 3/5 majority, to get over a probable gubernatorial veto.
"one option the legislature could pursue would be to cut the budget of the BoGfHE ... by the amount needed to make-up the difference between in-state and out-of-state tuition for the number of illegal immigrants expected to be admitted to RI colleges."
And a second option, seeing that the BoGfHE has so badly lost their way, would be to eliminate the line item altogether.
If cheap labor is what we need, why are we educating them?
Posted by Warrington Faust at October 4, 2011 5:35 PM
This says it all. The day after Sept.11, 2001 the planned meeting between U.S. President Bush and Mexico's president Vincente Fox was understandably cancelled. Top of the agenda for the two leaders was to be a discussion of guest workers from Mexico to work in the U.S.. Since the plans to bring to the U.S. legally what Warrington accurately labels "cheap labor" never happened, U.S. capitalists were undeterred. The use of undocumented workers, many from Mexico and central and south America in the housing industry, landscaping, service work in hotels and restaurants, and many industries in nearly every U.S. region. Only West Virginia and eastern Kentucky seems to have bucked the trend. Some people in the states where there is a sizable population of imported workers have come to believe that the policies such as educating these newly arrived workers families makes sense in the long term. Others such as Warrington apparently sees things differently. There is a faint echo from 150 years ago in his comment.
Andrew,
Sorry to misdirect you, the word "legislature" just slipped in somehow.
Phil,
Inconsistency, troubles me. The simple truth is that they arrived illegally. If we are going to reward that behavior, why are we bothering with immigration laws? It is not as though we had no means of "legal" immigration.
The defense that "They do work Americans won't" doesn't cut it with me. Implicit in this is the idea that we have laws which prohibit this, those laws are now inconvenient to us, we have not the will to change those laws, so, we are going to pretend that those laws do not exist. Or, if those laws do exist, they are contrary to morality and do not bind us. Makes me wonder why I obey speed limits.
Although it is new to American thinking, as you suggest a "garst arbeiter" system might work. We cannot be Mexico's safety valve. The solution would be for Mexico to pull itself together, we do not have Canadians flooding across the border.
Posted by: Warrington Faust at October 5, 2011 9:46 AM
"Whether government should ever create “public corporations” or other "quasi-public" bodies for the provision of private goods and services is a valid question in itself, but given that such entities are already with us and making decisions that impact people's lives, the immediate focus needs to be on whether their actions directly violate the core principles of democratic governance."
This is an extremely insightful comment.
I disagree with the remark about what the immediate focus should be,because it's accepting something that already exists that is not for the good,or perhaps even in alignment with the Constitution. Go back to the idea of "public corporations" and "quasi public bodies" without giving them a pass. I think that should be the focus before anything else.
Great post. Thank you.
Posted by: helen at October 8, 2011 12:13 AMThanx for the compliment, Helen.
By immiediate focus, I basically mean that it is very feasible for the legislature to reverse the Board of Governors' decision on in-state tuition for illegal immigrants in the next legislative session, whereas blanket legislation restricting "public coroporations" would be a substantially longer haul. But you are right, that this does not mean that the broader question is not worth discussing.
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