Our legislature killed a measure Monday that would have allowed Colorado residents, regardless of their immigration status, to get in-state tuition at state colleges, providing they attended high school for at least three years in Colorado, and they enroll within five years of high school graduation.
Naturally, there was some opposition, primarily on the grounds that this amounts to subsidizing illegal immigration.
But the issue here should have been Colorado residency, not federal immigration laws. The theory behind cheaper in-state tuition is that Colorado residents pay taxes to support Colorado institutions, whereas non-residents don’t. So non-residents pay higher tuition.
No matter what your federal immigration status, if you live in Colorado, you pay some Colorado taxes — sales tax, gasoline tax, property taxes (perhaps indirectly through your rent). This logic also applies to hunting and fishing licenses; non-residents pay more.
Just how valid this might be is another matter. Back at the start of the Ward Churchill controversy, the University of Colorado claimed that less than 10 percent of its budget came from the state government. Also, I often see advertisements from the Colorado Division of Wildlife which proclaim that almost all the agency’s funds come from licenses and fees, not state coffers.
If these claims are true, there’s no financial rationale for in-state discounts. It also makes one wonder about the whole concept of in-state residency, since Colorado has no way to control who comes here.
One of our governors, Big Ed Johnson, tried that in 1936. He proclaimed martial law along our southern border with Oklahoma and New Mexico, and instructed the National Guard to turn away “aliens and indigent persons” so as to save jobs and resources for Coloradans. But after two weeks of this, with New Mexico threatening to boycott Colorado potatoes, Johnson gave up, and the question never went to court.
However, at about the same time, California made it a crime to assist an “indigent person” in moving to the Golden State. One Marysville resident named Edwards drove to Texas and brought back his unemployed brother-in-law. California sentenced Edwards to six months in jail for importing an indigent. The appeal went to the U.S. Supreme Court, which in 1941 unanimously overturned the California law.
The main reason was that the federal constitution gives Congress sole power to regulate interstate commerce, which includes the movement of people, and thus states cannot set up their own immigration standards.
Several justices also noted in their concurrences that free travel among the states is an implied right of American citizenship.
Under that reasoning, a state might be able to deny entry to non-citizens. But how would a state do that without setting up inspection stations at every airport and border crossing? The only document that proves citizenship is a passport, and do we really want to present a passport just to cross Raton Pass?
Further, citizenship is another thing that Colorado has no control over, since the federal constitution gives Congress, not the states, the authority “to establish a uniform rule of naturalization.”
In 1798, President John Adams promoted the “Alien Law,” which extended the residency for citizenship from five to 13 years, and allowed immediate deportation of non-citizens by presidential order. His vice president, Thomas Jefferson, secretly wrote the Kentucky Resolution, which said it was up to each state to decide who could live there legally, as the federal government had no such specific constitutional power.
But it was never tested in court, and the 1798 Alien Act remains on the books — so apparently this a federal matter. Thus Colorado can’t decide who can live in Colorado and enjoy such benefits as residency offers. If certain Republicans in the legislature think otherwise, let’s see their arguments.
Ed Quillen (ed@cozine.com) of Salida is a freelance writer and history buff, and a frequent contributor to The Post.
