Rep. Hunter Wants To Withhold Student Aid From Sanctuary Campuses—Can He Do That?
Monday, February 13, 2017
Congressman Duncan Hunter, a Republican from Alpine, has introduced a bill defining sanctuary universities and prohibiting them from receiving federal student aid. In California, this money accounts for more than two-thirds of the aid students receive.
A bill from Congressman Duncan Hunter, R–Alpine, would prohibit sanctuary universities from receiving federal student aid. This and recent White House executive orders have left campuses feeling vulnerable — and their law experts busy.
We spoke to one of them, and to Hunter's chief of staff, to better understand how the law would impact local universities.
What is a sanctuary campus?
It's up for debate, says Niels Frenzen. He specializes in immigration law at the University of Southern California.
"It's a term that has no meaning in federal law, in immigration law," he said. "The interior enforcement executive order of President Trump uses the term 'sanctuary jurisdiction' but does not define that."
The president's order says sanctuary jurisdictions "shield aliens from removal from the United States," but doesn't spell out which policies would put them at risk of losing federal funding.
Hunter's bill is more specific. It defines a sanctuary campus as an institution of higher education that refuses to share the immigration status of individuals on campus; refuses to detain an individual living in the country illegally or notify federal immigration officials of his or her release from custody; harbors a person without legal status; offers in-state tuition to students in the country illegally; or prohibits agencies under the Department of Homeland Security from recruiting on campus.
The bill does say campuses that offer protection from immigration enforcement solely to victims and witnesses are not subject to sanctions.
Frenzen said that definition isn't a great fit for institutions of higher learning.
"A lot of the actions that it is targeting are just irrelevant and are not things that universities engage in — harboring non-citizens, detaining non-citizens," he said. "A significant part of the bill is really just political posturing."
He added universities don't make a habit of collecting citizenship information on its domestic students. Staff might be able to deduce citizenship from financial aid records, but there's not really a committed, reliable dataset. Universities do keep information on foreign students studying on visas, as required by law.
The language of the bill seems to point more toward sworn campus police officers who could come into contact with an individual living in the country illegally.
Police departments have long shared fingerprint scans with federal immigration officials, but many have said they will not go out of their way to ask about immigration status, nor will they detain individuals for federal agents past what is allowed for the local charge. Opting out in this way is considered legal, but Hunter and Trump want the practice to end.
Hunter's Chief of Staff Joe Kasper said his office considers the University of California a sanctuary.
The University of California trustees have said they will not permit campus police to cooperate with immigration enforcement, nor will they release student records without a warrant and create a registry of individuals based on national origin.
The California State University system has been less specific, but said it won't cooperate with federal immigration enforcement and sent a letter, along with California community colleges and the University of San Diego, urging the president to preserve the Obama administration's deferred action policy for young immigrants brought into the country illegally.
All California universities offer in-state tuition to residents, regardless of immigration status.
Is it constitutional?
Frenzen said the bill probably wouldn't pass legal muster.
"The Supreme Court has clearly held that the federal government cannot compel states to enforce federal laws," Frenzen said. "The federal government can create incentives for states to enforce federal laws, but the federal government cannot coerce by threatening to withhold funds for existing programs."
Frenzen points to the court's 2012 decision on the Affordable Care Act, which said the federal government could not withhold Medicaid funding if states did not adopt certain aspects of Obamacare. The court ruled the law's Medicaid expansion should be optional for states.
Frenzen said the court considered the threat too coercive because Medicaid has long provided significant health care funding to the states. He said the government would have more success withholding funds from new pots of money.
Under Title IV of the Higher Education Act of 1965 — the section cited in Hunter's bill — the U.S. Department of Education dispenses billions of dollars each year to more than 6,000 institutions. In California, this money accounts for more than two-thirds of the aid students receive.
In other words, it's a big chunk of money on which state institutions rely.
Kasper argued the bill is on firm legal footing.
"Congress, under Article I, has the power of the purse," Kasper said. "Congress has the right to determine what to fund and what not to fund through its process, and it can deny funding as a method of requiring cooperation. Where the legal challenges sometimes come in on certain fronts is whether or not Congress is acting outside its Constitutional purview."
Kasper points to a law withholding reimbursement to cities with sanctuary policies for jailing criminals who are in the country illegally. That reimbursement grant, the State Criminal Alien Assistance Program, was started in 2010. That year, California received about $20 million, according to the right-leaning Center for Immigration Studies.
The Supreme Court has upheld this "stick" approach to getting states in line. In 1987 it ruled the federal government could withhold highway funds from states that did not implement a drinking age of 21.
In this ruling however, the court laid out four criteria other judges now use for deciding whether the federal government is overstepping. It says the condition imposed on states cannot be unconstitutional and coercive.
To know with certainty whether Hunter's bill meets those criteria, it would need to become law and then challenged in court. The bill is still in committee.
Can Hunter withhold funds another way?
Yes, and he plans to. Hunter released a statement Thursday saying he would not pass along discretionary funding requests from sanctuary campuses in his district.
"In the case of the UC school system, they are considered sanctuary," Kasper said. "So unfortunately for the school system, Hunter will not be supporting any appropriations requests unless they make significant policy changes."
This would happen during appropriations.
Each year, the president and Congress lay out their funding priorities. If, say, they prioritize Alzheimer's research as part of their discretionary spending, Congressional committees then pass legislation directing that money to specific entities — often universities — to conduct that research.
There's a lot of competition for these funds, so where the money ultimately goes depends on whether your Congressional representative goes to bat for you. Hunter says he won't do that for sanctuary campuses and jurisdictions, though he would make exceptions in emergency situations.
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