Our Legal Eagles Counter-Attack Over In-State Tuition for Illegal Aliens and "Standing to Sue"

The Washington Legal Foundation (WLF) is trying a new tactic in the battle against in-state tuition for illegal aliens.

It's filed a formal complaint [PDF] against the Department of Homeland Security's Office of Civil Rights and Civil Liberties for not enforcing existing anti-discrimination laws. 

What a concept!

WLF got the idea from a recently unsuccessful suit filed in the U.S. District Court for the District of Kansas—(Day v. Sebelius). 

Basically, WLF decided to take the Kansas lemons and make Texas lemonade.

WLF Chief Counsel Richard Samp explained to me Friday via e-mail:

"I thought you might be interested in a complaint [PDF] filed this week by the Washington Legal Foundation against the State of Texas. Texas is one of the eight states that provides in-state college tuition rates to illegal aliens, despite an IIRIRA [JM: the 1996 amendments to the Immigration and Nationality Act, called the "Illegal Immigration Reform and Immigrant Responsibility Act"] provision that prohibits the practice.

"Unfortunately, a federal district court in Kansas recently ruled that individual citizens have no right to sue to enforce IIRIRA, even though they have been injured (i.e. they are forced to pay higher tuition rates than illegal aliens pay to attend a state university). The Kansas court said that only the Department of Homeland Security is permitted to enforce IIRIRA. So we decided to take up the district court's suggestion.

"We filed a complaint against Texas with DHS Office for Civil Rights and Civil Liberties, which is supposed to investigate civil rights violations under the immigration laws. We claim that Texas practice denies the civil rights of US citizens living outside the State who are denied the same in-state rates given to illegal aliens."

Hats off to the WLF!

And let's hope that Daniel Sutherland and the DHS Office of Civil Rights and Civil Liberties do their jobs.

The American people really have nowhere else to turn.  The federal district court in Kansas asserted that the Immigration Act does not give private citizens their own right of enforcement for immigration violations, among other things:

"The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers. . . ." 8 U.S.C. § 1103(a)(1) (Day v. Sebelius, note 7)

So if the federal courts say there's no private right of action available for citizens to sue here, the DHS must do something about it!

Because the fact that American citizens from other states are forced to pay higher state college tuitions than illegal aliens is a screaming "equal protection" violation! 

Why should illegal aliens (who happen to be residing illegally in Kansas, for example) pay lower tuition rates than American citizens from Nebraska who attend the University of Kansas?

The problem here is "standing to sue" . . . the question of whether or not an American citizen has a valid right of action to have his or her "day in court" on a particular issue.

The Federation for American Immigration Reform explained the first layer of what happened on the "standing" issue in the Kansas case. 

But a "Washington lawyer" filled in the blanks in an insightful posting in the VDARE.com BLOG—a must-read for Legal Eagles.

Ironically, the same issue of "standing" worked to the benefit of real immigration reformers in defending the hard-won victory at the Arizona ballot box in Proposition 200.  The Treason Lobby's challenge to Prop. 200 that was dismissed in federal district court was also rejected on August 9 in Friendly House v. Napolitano [PDF] before the Appeals. The Ninth Circuit rejected the Treason Lobby's claim on the issue of "standing."  The particulars were expertly explained by FAIR and WLF [PDF] in recent press releases. So when it comes to "standing to sue," you win some, and you lose some. Federal court "standing" is the reason why American citizens can't just run off and file suits against laws they don't like. 

Unaware of this issue, a VDARE.com reader recently took me to task, via e-mail, for not filing enough lawsuits fast enough:

"There are endless reasons to sue our government and take back what is ours. The average American cannot fight our government if for no other reason simply because they are not schooled in law. Why don't you do something? You need to take up the banner for America and help bring an end to the insanity.

"Please take your talents and put them to work. Surely there are other lawyers that want America protected from this illegal invasion.

"We need to fight with the law, the same law that was put in place to protect Americans and our country. As it stands now, anything Bush wants he gets even if it's illegal according to our laws. Nothing has changed yet so there is still time to sue the government and file for impeachment of our President on legal grounds.

"Do something, we're running out of time!

Believe it or not, there are American citizens out there in connection with organizations like WLF and FAIR, as well as private attorneys like Howard Foster who are trying to get something going in federal court, despite the ever-present problem of the "standing" issue.

Foster's use of the RICO statute will also ultimately stand or fall on a complex legal standard—whether or not a non-illegal alien-hiring business can demonstrate an actual injury to their business because of an illegal alien-hiring competitor.

But there's more help on the way.  The border-watching  Minuteman Project ("vigilantes," according to President Bush) is branching out with a unique effort called Operation Spotlight in order to put the heat on employers of illegal aliens.  They'll do it by turning law-breakers on a silver platter over to the Internal Revenue Service's criminal investigation division. 

Nevertheless, at this stage of the game, the patriotic Legal Eagles out there interested in real immigration reform are few and far between.

Unfortunately, the Treason Lobby and its legal handmaidens in the immigration bar have millions of illegal aliens and criminal alien resident clients out there who will be put to good use attacking immigration law enforcement and putting it to death by a thousand cuts.

And don't forget the Treason Lobby's willing accomplices in the federal courts and the federal immigration bureaucracy—who willingly succumb to the battering ram of endless litigation.

Sounds grim on the legal front?

But remember: the real immigration reform movement has something going for it that the Treason Lobby will never have:

The support of the American people . . .  and we're gonna win!

Juan Mann [send him email] is a lawyer and the proprietor of DeportAliens.com.