Exercising its federal power to regulate immigration, Congress has responded to illegal immigration by enacting deterrent legislation that includes provisions denying public benefits to undocumented immigrants. One of these provisions, 8 U.S.C. § 1623, explicitly bars states from providing postsecondary education benefits to undocumented immigrants on the basis of in-state residency. As a consequence, undocumented young adults—many of whom grew up and received their primary and secondary education in the United States—are effectively barred from pursuing higher education by their ineligibility for in-state tuition rates and financial aid. Some states, however, have evaded the § 1623 bar by providing undocumented students with in-state tuition rates for which eligibility is not explicitly based on state residency.

This Note examines whether the states that choose to affirmatively provide in-state tuition benefits to their undocumented students are preempted from doing so by § 1623. It concludes that properly crafted state legislation is not preempted by federal law, though the most effective and sensible resolution to the conflicting views on this issue calls for Congress to repeal § 1623 and offer deserving undocumented students a pathway to lawful immigration status and the opportunity to pursue higher education.