(José Niño, Headline USA) The Federation for American Immigration Reform (FAIR) has entered the legal battle over New Jersey’s tuition breaks for illegal aliens, siding with the Trump administration as it seeks to dismantle the program.
According to a FAIR press release, the group filed an amicus brief in the U.S. District Court for the District of New Jersey urging the judge to deny the state’s motion to dismiss.
FAIR says New Jersey admits resident illegal aliens to its public universities under looser standards than out of state Americans face, then charges them discounted in state rates while citizens from elsewhere pay far more.
Federal law forbids that arrangement. Under 8 U.S.C. § 1623(a), “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 U.S. citizens can receive the same benefit “without regard to whether” they live in that state.
New Jersey tries to sidestep the statute by tying eligibility to schooling rather than address. Students generally must attend a New Jersey high school for at least 3 years, graduate there, and enroll at a public college. Illegal alien applicants must also sign an affidavit saying they have sought or will seek legal status.
FAIR rejects the distinction. Its brief, signed by attorney John M. Miano, notes that nearly every student attends high school in the state where they live, which turns the attendance rule into a near perfect substitute for residency. “Such requirements are a thinly veiled proxy for residency and run afoul of Congress’s prohibition,” the brief states.
The brief advances two theories. Under express preemption, it argues states cannot dodge the federal ban by swapping in residency style criteria. Under obstacle preemption, it contends the state law undermines what Congress set out to achieve. The brief cites a 1996 conference report declaring, “This section provides that illegal aliens are not eligible for in-state tuition rates at public institutions of higher education.”
FAIR concludes that the New Jersey statute “stands as a deliberate and direct obstacle to Congress’s purpose” and “re-incentivizes what Congress sought to discourage.” Citing an 1824 Supreme Court ruling, the brief holds that when a state law “interfere[s] with, or [is] contrary to” federal law, it “must yield.”
“Federalism isn’t a game. If states come up with clever strategies to subvert the clear purposes of federal law, that just means their laws are preempted,” said Dale L. Wilcox, FAIR’s executive director and general counsel. “The court should see the obvious here—that New Jersey’s deliberate attempt to block Congress’s purpose runs afoul of the well-established doctrine of obstacle preemption—and strike down this law.”
The case is United States v. New Jersey, No. 3:26-cv-04862 (D.N.J.).
The brief can be found here.
José Niño is the deputy editor of Headline USA. Follow him at x.com/JoseAlNino
