An Orwellian lawsuit

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In the wake of the September 11 attacks, it has become increasingly difficult to defend concepts that flout U.S. immigration law, such as the notion now being put forward by the Mexican American Legal Defense and Educational Fund (MALDEF) that persons in the country illegally have a constitutional right to attend state colleges and universities. MALDEF, working in tandem with the prominent Washington law firm Arnold & Porter, announced that it has filed suit against seven Virginia schools (George Mason University, the Northern Virginia Community College system, Virginia Commonwealth University, the University of Virginia, Virginia Tech, James Madison University and the College of Wiliam & Mary) objecting to the fact they are following an advisory opinion issued last year by Attorney General Jerry Kilgore.

In the opinion, Mr. Kilgore recommended that all colleges in the state deny admission to individuals who cannot prove they are legally in the United States. He also suggested that school admissions officers report possible illegal applicants to federal immigration authorities. This does not sit well with the folks at MALDEF. In its lawsuit filed in U.S. District Court this week, MALDEF demands relief on behalf of six plaintiffs: a Northern Virginia-based immigrant-rights group called Equal Access Education and five anonymous plaintiffs who are natives of Central and South America. None of them, the lawsuit notes, are U.S. citizens. Instead, the five are believed to have an “illegal,” “unlawful” or “undocumented” immigration status.

MALDEF’s brief avers that Virginia is violating the “Supremacy Clause” of the U.S. Constitution by refusing to permit illegal immigrants to attend state colleges and universities. By limiting attendance to citizens and lawful permanent residents of the United States, Virginia is “engaging in an impermissible regulation of immigration, and/or impermissibly occupying a field that Congress has the exclusive authority to occupy,” MALDEF contends.

“It seems as if they are attempting to force Virginia colleges and universities to accept illegal aliens,” said a spokesman for Mr. Kilgore. That’s right, and it’s an absolutely Orwellian interpretation of the law. The Supremacy Clause would bar Virginia from enacting an immigration policy that conflicts with federal law (say, one that permits Pakistani members of al Qaeda to freely enter the country through airports and seaports in the state). But that’s not what’s happening here. Federal law bars people from entering and residing in the country illegally. By requiring that persons attending state schools be lawfully in the country, Virginia’s policy in no way contradicts — and is absolutely consistent with — federal law.

In short, MALDEF and the lawyers at Arnold & Porter surely realize that there is no constitutional problem with Virginia’s decision to bar illegal immigrants from receiving taxpayer-subsidized higher education in the state. Their real hope, doubtlessly, is that if they can find an ideologically like-minded federal judge willing to stand the law on its head on behalf of illegal immigrants and the political agenda of open borders, they can legally subvert the law.

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