Even when Democrats controlled both houses of Congress in 2009-10, they couldn’t pass the Dream Act of amnesty for young people brought to the United States illegally by their parents more than five years ago. So President Barack Obama simply declared it the law via executive fiat. Clearly a Chief Executive has prosecutorial discretion, but ordinarily the judicial branch is bound by statutes lawfully enacted by Congress if there is a conflict.
Georgia is not one of the 13 states that have passed state-Dream Acts and only allows in-state tuition for students that can document their “lawful presence” in the United States. But the Peach State statute doesn’t define “lawful presence”.
A lawsuit brought in this writer’s home county of DeKalb will test both the applicability of President Obama’s order and the Georgia’s law:
DECATUR — A judge said Thursday that he needs more information and time to decide the case of a group of young people who were brought to the U.S. illegally as children and want the Georgia university system to grant them in-state tuition.
The roughly three dozen young immigrants have been granted temporary permission to stay in the U.S. under an Obama administration policy introduced last year. They filed a lawsuit in August asking a judge to instruct the university system’s Board of Regents to allow them to qualify for in-state tuition.
At a hearing Thursday, DeKalb County Superior Court Judge Mark Anthony Scott heard arguments on the state’s request to move the case to Fulton County Superior Court because that’s where the Board of Regents is located. Charles Kuck, a lawyer for the young immigrants, argued that the board can be sued in any county where it has a school. Scott said the arguments were complex and asked both lawyers to submit an additional filing within 60 days…
The Georgia university system requires any student seeking in-state status for tuition purposes to provide verification of “lawful presence” in the U.S. The Regents have said students with temporary permission to stay under the new program — known as Deferred Action for Childhood Arrivals or DACA — do not meet that requirement. But the Regents’ policy does not define “lawful presence,” the lawsuit says.
The [Obama policy] allows young people brought to the U.S. illegally as children to obtain work permits for two years if they meet certain requirements. The Department of Homeland Security considers people who have qualified [under the Obama order] to be lawfully present, according to a fact sheet on the website of U.S. Citizenship and Immigration Services. – The Marietta Daily Journal
Given the Supreme Court’s 2012 ruling in Arizona v. U.S. striking down much of that state”s illegal immigration law in 2012, a portion of which sought to define illegal residency for state law enforcement purposes, may persuade the Georgia court to accept the Obama policy as controlling. But unlike the Arizona case however, the federal government bases its lawful presence policy solely upon an executive order and not pursuant to a bill enacted by Congress. But also unlike the Arizona case, the Georgia matter concerns entitlement to state funds which may enhance its Tenth Amendment power.