Legality of Executive Implemented In-State Tuition for Illegal Alien Students: Why Is the RI Attorney General Sidestepping One of the Specifically Delineated Obligations of His Office?

Let me preface this post by saying that I applaud Attorney General Peter Kilmartin for moving to have Rhode Island participate in the Secure Communities Program. He had to be correct in that regard because it earned him a dubious rating on the (smirk) "Truth"-O-Meter.

In late September of last year, the RI Board of Governors for Higher Education

approved a measure that would allow students who immigrated to the United States illegally to pay in-state tuition rates at Rhode Island's public colleges and universities after the General Assembly declined to take up the issue.

Note that last clause: the Board of Governors, a division of the Executive Branch, implemented a policy that the Legislative Branch had refused to vote into law.

In a letter dated February 9, 2012, twenty three Rhode Island senators submitted the following request to Attorney General Kilmartin.

As members of the Rhode Island Senate, we respectfully request that you provide us with an advisory opinion about whether the Rhode Island Board of Governors for Higher Education ("the Board of Governors") has the legal authority to adopt a policy that appears to be in direct violation of both federal law and the will of the Rhode Island General Assembly or whether the adoption of such a policy constitutes an unlawful or ultra vires act.

Eventually, after two follow-up requests from the senators, the office of the Attorney General responded. Quoting directly from the letter dated April 19, 2012 sent to Senator Marc Cote by Deputy Attorney General Gerald J. Coyne,

The provision of legal advice is one of the roles of the Attorney General. In doing so, it is important to remember at all times that the "client" of this office is the State of Rhode Island, rather than any particular office, agency, officer, or employee.

Among the ways in which legal advice can be provided is the issuance of an advisory opinion. This office responds to requests for advisory opinions received from the head of a state agency. For the purposes of this policy, this office will issue an advisory opinion from the Senate if received from the President of the Senate, or the House of Representatives if received from the Speaker.

Really? "For the purposes of this policy, this office" will decide who gets to make the request for a legal opinion? Does Rhode Island law as it pertains to the Office of Attorney General back up this stance?

Except as otherwise in the general laws provided, the attorney general, whenever requested, shall act as the legal adviser of the individual legislators of the general assembly, of all state boards, divisions, departments, and commissions and the officers thereof, of all commissioners appointed by the general assembly, of all the general officers of the state, and of the director of administration, in all matters pertaining to their official duties, ...

Oops, no, it doesn't.

A group of Rhode Island lawmakers has sought the legal advice of the Attorney General. Rhode Island law clearly states that supplying this advice is one of the duties of the office of Attorney General. Why is the Attorney General deliberately declining to do so?

This post is entirely the result of the diligence of the Executive Director of RIILE, Terry Gorman, and of the well-founded concerns of twenty three state senators about the legality of the Executive Branch implementing such a significant policy. RIILE, Terry Gorman and many, many other people, citizens and legal immigrants, share the bewilderment and consternation of yours truly at the refusal of our elected officials to address the problem of illegal immigration via the two eminently reasonable and minimalistic measures of enforcing existing laws and withdrawing enticements (such as in-state tuition!) to breach our sovereignty, our borders and our budgets.