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Republican-appointed state judges play pivotal role in affirming in-state tuition for illegal immigrants

by Christopher A. Guzman, published

In what is shaping up to be a significant period for determining the direction of U.S. immigration policy, the California Supreme Court may have offered a preview of what is to come at the federal level with its unanimous ruling on Monday to uphold in-state tuition for illegal immigrants at the state's colleges and universities.

The California Supreme Court's decision, by now, is already old news in the rapid cycle of the blogosphere and newsrooms. What's not being emphasized though, is the heavily Republican aspect of the decision. It's interesting to consider in light of the current politics and ever increasing polarization of the immigration debate in Washington.

Take, for instance, 6 of the 7 judges on the California Supreme Court are appointees made by former Republican governors. Associate Justice Joyce L. Kennard and Marvin Baxter were appointed by Gov. George Deukmejian. Chief Justice Ronald M. George, as well as Associate Justices Kathryn M. Werdegar and Ming W. Chin, were appointed by Prop 187 proponent Gov. Pete Wilson, and Associate Justice Carol A. Corrigan was appointed by now lame duck Gov. Arnold Schwarzenegger.

Examining the California decision, DREAM Act advocates seized upon this little emphasized fact to take aim at Republicans in Washington who previously supported the DREAM Act but are now opposed to it.  "Anti-immigrants accusing CA SC for activist liberal judges after Martinez decision. 6 of 7 justices on court are Republican appointees," they wrote.  DREAM Act activists even called for their supporters to target Texas Congresswoman Kay Bailey Hutchison's Facebook page for her reversed stance on the DREAM Act.

In what seems to be a mini-version of the DREAM Act, the upheld California law applies to illegal immigrants and legal residents who have attended a California high school for at least three years, the San Francisco Chronicle reports in its breakdown of the court's ruling. At the core of the court's justification is their interpretation of the Privileges and Immunities clause of the United States Constitution. While the clause applies to citizens, the court ruled, that doesn't necessarily mean that the buck stops at that point.

     "But no authority suggests the clause prohibits states from ever giving resident aliens (again, lawful or unlawful) benefits they do not also give to all American citizens. The fact that the clause does not protect aliens does not logically lead to the conclusion that it also prohibits states from treating unlawful aliens more favorably that non-resident citizens," the court wrote.

The ruling is one of constitutional muster that could find its way to the United States Supreme Court.

The California ruling could very much serve as a driving force for passing the DREAM Act during the lame duck session of Congress. The key question on the table is not only whether Congress will pass the bill, but also whether President Obama will sign it. He is scheduled to meet this week with key Democratic leaders from the House and Senate. 

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