'Violates it nonetheless': Trump admin sues Virginia for providing in-state tuition to immigrant students 'in direct conflict of federal law'

The Trump administration filed a federal preemption lawsuit on Monday against the Commonwealth of Virginia over a policy that provides in-state tuition for immigrants who live in the Old Dominion.

In February, President Donald Trump signed an executive order entitled "Ending Taxpayer Subsidization of Open Borders." The order aimed to keep "taxpayer-funded benefits" away from immigrants and directed officials to target "[s]tate laws that provide in-State higher education tuition to aliens but not to out-of-State American citizens."

Now, in a 13-page lawsuit, the U.S. Department of Justice is taking a constitutional swipe at the University of Virginia's tuition policies.

"Federal law prohibits States from providing aliens who are not lawfully present in the United States with any postsecondary education benefit that is denied to U.S. citizens," the lawsuit begins. "There are no exceptions. Virginia violates it nonetheless. This court should put an end to this and permanently enjoin the enforcement of provisions of the Virginia Education Code that directly conflict with federal immigration law."

The litigation focuses on two sections of Virginia law that recognize immigrants as "Virginia residents based on certain conditions."

The laws themselves do not mention immigrants or distinguish between classes of people, except for provisions outlining rules for military dependents. Rather, the laws cited by the DOJ focus on how domicile is determined and the time periods that allow a person domiciled in Virginia to become eligible for in-state tuition.

The lawsuit offers the following upshot of those guidelines: "Virginia law permits an alien who is not lawfully present in the United States to qualify for reduced in-state rates and state-administered financial assistance based on residence within the state but does not make United States citizens eligible for such benefits without regard to whether the United States citizens are Virginia residents."

To hear the DOJ tell it, providing in-state tuition to immigrant residents unlawfully discriminates against out-of-state U.S. citizens.

"That classification makes illegal aliens eligible for reduced in-state tuition and state-administered financial assistance for public state colleges and universities while U.S. citizens from other states are ineligible for the reduced tuition and must pay higher out-of-state tuition rates," the lawsuit goes on. "This is not only wrong but illegal. The challenged act's discriminatory treatment in favor of illegal aliens over U.S. citizens is squarely prohibited and preempted by federal law."

The Trump administration argued the UVA domicile policy runs afoul of a section of federal law which, on its own terms, purports to limit "eligibility for preferential treatment of aliens not lawfully present on basis of residence for higher education benefits."

The lawsuit cites the relevant language (emphasis in original):

An alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State . . . for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit . . . without regard to whether the citizen or national is such a resident.

It is not enough for the federal government to say the UVA tuition guidelines violate federal law, though they do argue that UVA is violating at least two immigration-related statutes. The DOJ also said UVA tuition guidelines are "in direct conflict with federal law." And, closely related to this argument, the DOJ says Virginia encroaches on federal immigration law by trying to take immigration status out of the equation in a third section of the domicile rules.

"Virginia law expressly provides that a student may not be deemed ineligible to establish domicile for in-state tuition purposes solely on the basis of the immigration status of the student's parent," the lawsuit goes on. "As a result, Virginia law affirmatively removes immigration status as a barrier to establishing domicile and obtaining in-state tuition benefits."

The litigation comes in the form of an as-applied challenge. This means the DOJ does not think Virginia law is broadly unconstitutional. Instead, the federal government is arguing that the in-state tuition guidelines used by UVA are unconstitutional in one specific circumstance: when such pricing is afforded to immigrants.

The federal government says the salve for Virginia's alleged encroachment of federal immigration law is federal preemption of the domicile rules used to determine in-state tuition.

To that end, the lawsuit puts forward a lone avenue of redress: a violation of the supremacy clause of the U.S. Constitution.

The government's lawsuit also marshals some support from a 2023 case before the U.S. Court of Appeals for the 5th Circuit in which a group of conservative students unsuccessfully attempted to bar the University of North Texas from charging out-of-state tuition.

In that case, the appellate panel declined to grant relief for the out-of-state students but opined separately to say the federal law cited by the students – the same one cited by the Trump administration here – has a "sole focus…on improper benefits for illegal aliens."

So, while the lawsuit rhetorically seeks to strike blows for U.S. citizens, the law itself cannot do that under the DOJ's preferred precedent. The Trump administration, instead, is simply trying to get Virginia to stop allowing immigrants to make use of the domicile laws.

"[T]hey confer in-state tuition benefits on unlawfully present aliens that are not available to all United States citizens on the same terms, regardless of residency," the lawsuit argues. "As a result, these provisions, as applied to illegal aliens, are preempted under the Supremacy Clause and are therefore unconstitutional."