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.