§ 1623(a) Expressly Preempts State Residence-Based In-State Tuition for Unlawfully Present Aliens; Futility Screening Applies to Defense-Side Intervenors

Introduction

In United States v. State of Texas (5th Cir. July 9, 2026), the United States challenged Texas Education Code provisions that allowed certain noncitizens, including unlawfully present aliens, to qualify for resident (in-state) tuition while many out-of-state U.S. citizens remained subject to higher nonresident rates. The United States alleged the provisions were expressly preempted by 8 U.S.C. § 1623(a), which restricts states from conferring “postsecondary education benefit[s]” to unlawfully present aliens “on the basis of residence” unless the same benefit is available to U.S. citizens and nationals “without regard” to residency.

Texas quickly settled, and the district court entered a consent judgment permanently enjoining enforcement of Tex. Educ. Code § 54.051(m) and § 54.052(a) (the “Challenged Provisions”) as applied to unlawfully present aliens. Several groups and individuals—Students for Affordable Tuition; La Union del Pueblo Entero; Austin Community College; and Oscar Silva—moved to intervene post-judgment to undo the consent judgment and defend the state-law scheme. The district court denied intervention as futile because § 1623(a) preempted the Challenged Provisions.

The Fifth Circuit affirmed the denial of intervention, held the Challenged Provisions are expressly preempted, and dismissed the would-be intervenors’ remaining challenges (including to the consent judgment) for lack of appellate jurisdiction because they were never parties.

Summary of the Opinion

  • Intervention may be denied as futile if the proposed intervenor cannot plead a legally sufficient claim or defense; the Fifth Circuit reaffirmed that futility is a threshold screening under Pin v. Texaco, Inc..
  • Futility applies to defense-side intervenors as well as plaintiff-side intervenors; the Fifth Circuit “join[ed]” other circuits that apply the same rule to both.
  • Express preemption: § 1623(a) preempts Texas’s Challenged Provisions because they allow unlawfully present aliens to obtain in-state tuition based on Texas residence while out-of-state U.S. citizens generally cannot obtain the same benefit without regard to residency.
  • Appellate jurisdiction: because the movants were denied intervention, they remained nonparties and could not appeal the consent judgment; the court dismissed remaining claims for want of jurisdiction.

Dissent (Ramirez, J.): would remand for the district court to evaluate Article III jurisdiction given the speed and apparent alignment between the United States and Texas; would also hold § 1623(a) is not a valid preemption statute under the Tenth Amendment’s anti-commandeering doctrine as explained in Murphy v. NCAA.

Analysis

Precedents Cited

1) The preemption framework and the controlling “roadmap”: Young Conservatives of Texas Foundation v. Smatresk

The panel treated Young Conservatives of Texas Foundation v. Smatresk, 73 F.4th 304 (5th Cir. 2023), as the key interpretive guide to § 1623(a). In Young Conservatives, the Fifth Circuit held that a different provision, Tex. Educ. Code § 54.051(d), was not expressly preempted because it merely set the tuition price for nonresidents and did not itself grant unlawfully present aliens any “benefit.” But Young Conservatives also flagged that “a different, unchallenged portion of Texas’ scheme seems to conflict with § 1623(a)”—namely the very residency-eligibility mechanics attacked here. The present opinion effectively converts that observation into a holding: the “portion[s]” allowing unlawfully present aliens to qualify for resident tuition based on residence are preempted.

2) Futility as a threshold intervention screen: Pin v. Texaco, Inc. and related cases

The court relied on Pin v. Texaco, Inc., 793 F.2d 1448 (5th Cir. 1986), for the rule that courts must conduct a threshold futility analysis before turning to Rule 24(a) and (b) factors. It reinforced that futility uses the Rule 12(b)(6) legal-sufficiency lens (also citing Stripling v. Jordan Prod. Co., 234 F.3d 863 (5th Cir. 2000)) and reiterated that intervention may be denied when “the proposed intervention would fail to state a claim” (Saavedra v. Murphy Oil U.S.A., Inc., 930 F.2d 1104 (5th Cir. 1991)).

Importantly, the panel “now join[s]” other circuits in applying futility screening to defense-side intervenors, citing: Williams & Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd., 840 F.2d 72 (D.C. Cir. 1988); Hispanic Soc'y of the N.Y.C. Police Dep't v. N.Y.C. Police Dep't, 806 F.2d 1147 (2d Cir. 1986); and R.I. Fed'n of Tchrs., AFL-CIO v. Norberg, 630 F.2d 850 (1st Cir. 1980). That adoption is a procedural precedent: defense-side intervenors in the Fifth Circuit must plead a “colorable defense” or face denial on futility grounds.

3) Standards of review and appellate “provisional jurisdiction”

For intervention-as-of-right, the court reaffirmed de novo review using Texas v. United States, 805 F.3d 653 (5th Cir. 2015), and Edwards v. City of Hous., 78 F.3d 983 (5th Cir. 1996) (en banc). For permissive intervention, it cited 8fig, Inc. v. Stepup Funny, L.L.C., 135 F.4th 285 (5th Cir. 2025), and emphasized the Fifth Circuit’s “provisional jurisdiction” doctrine from Rotstain v. Mendez, 986 F.3d 931 (5th Cir. 2021): if there is no abuse of discretion in denying permissive intervention, the appellate court must dismiss for lack of jurisdiction.

4) Statutory interpretation and canons shaping the § 1623(a) reading

  • United States v. Palomares, 52 F.4th 640 (5th Cir. 2022): used for the conjunctive ordinary meaning of “and,” supporting the conclusion that Texas’s residency pathway requiring Texas graduation and continuous residence still makes residence a necessary condition.
  • Bostock v. Clayton Cnty., 590 U.S. 644 (2020), and Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 589 U.S. 327 (2020): used to construe “on the basis of” as but-for causation. That framing mattered because it foreclosed arguments that residence must be the sole factor.
  • Asadi v. G.E. Energy ( USA), L.L.C., 720 F.3d 620 (5th Cir. 2013), and Robinson v. Shell Oil Co., 519 U.S. 337 (1997): used to anchor textual interpretation in context, rejecting hyper-literal reliance on a single word (like the article “a”).
  • La Union del Pueblo Entero v. Abbott, 151 F.4th 273 (5th Cir. 2025): relied on to reject “abstruse grammatical” disputes over “a” meaning “any” vs. “one.”
  • 1 U.S.C. § 1 (Dictionary Act), with Seth B. ex rel. Donald B. v. Orleans Par. Sch. Bd., 810 F.3d 961 (5th Cir. 2016): supports reading singular to include plural—so “a citizen or national” does not mean “one citizen somewhere.”
  • Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115 (2016): used (via Young Conservatives) to reject the presumption against preemption when Congress has included an express preemption clause.
  • Nielsen v. Preap, 586 U.S. 392 (2019); Jennings v. Rodriguez, 583 U.S. 281 (2018); and Warger v. Shauers, 574 U.S. 40 (2014): used to limit constitutional avoidance to genuinely ambiguous statutes.
  • Murphy v. NCAA, 584 U.S. 453 (2018): cited by the majority to explain anti-commandeering, but deployed to reject the intervenors’ argument by characterizing § 1623(a) as denying permission rather than issuing orders to states.

5) Severability and remedial tailoring

The court applied Texas severability principles through Nat'l Fed'n of the Blind, Inc. v. Abbott, 647 F.3d 202 (5th Cir. 2011), rejecting the intervenors’ proposal to sever the residence-duration element while leaving a graduation-only pathway. It held such a rewrite would not be “complete in itself” and would not preserve legislative intent.

6) Nonparty status and limits on appealing consent judgments

The jurisdictional dismissal rests on well-established nonparty principles: Edwards v. City of Hous. and U.S. ex rel. Eisenstein v. City of N.Y., 556 U.S. 928 (2009), for the proposition that intervention is the requisite mechanism to become a party entitled to appeal. Additional support comes from treatise citations and Fifth Circuit practice, including White v. Tex. Am. Bank/Galleria, 958 F.2d 80 (5th Cir. 1992).

7) Rule 59(e)/60(b) relief limited to parties

The court cited Rule 60(b)’s text (“a party or its legal representative”) and relied on Ross v. Marshall, 426 F.3d 745 (5th Cir. 2005), to underscore that nonparties generally cannot use post-judgment motions to relitigate merits; absent abuse of discretion, appellate review ends for lack of jurisdiction.

Legal Reasoning

1) Why intervention failed: futility as the gatekeeper

The majority treated futility as dispositive. Under Pin v. Texaco, Inc., a court must screen the proposed claim/defense for legal sufficiency before analyzing Rule 24’s entitlement/discretion factors. The panel also announced a circuit-level clarification: futility screening is not limited to plaintiff-side intervenors and equally applies to defense-side intervenors. Practically, this meant that if the Challenged Provisions are preempted as a matter of law, there is no plausible defense to plead, making intervention futile.

2) Express preemption under § 1623(a): the disparity § 1623(a) forbids

The court framed § 1623(a) as a categorical rule with an express-preemption function: a state may not make unlawfully present aliens eligible for a postsecondary education benefit “on the basis of” state residence unless U.S. citizens and nationals are eligible for the same benefit “without regard” to residency.

On the Texas side, § 54.051(m) establishes that noncitizens pay nonresident tuition unless they “establish residency,” and § 54.052(a) defines multiple residency pathways without requiring lawful presence. The result, as the opinion puts it, is straightforward: unlawfully present aliens who meet Texas residency criteria can pay resident tuition; out-of-state U.S. citizens generally cannot. That is the disparity § 1623(a) “bars.”

3) The court’s rejection of the intervenors’ interpretive arguments

  • “Not on the basis of residence” because other criteria exist: The panel held residence is still a necessary condition. Using Bostock v. Clayton Cnty. and Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, it read “on the basis of” as but-for causation and rejected any attempt to add “solely” to the statute. Even under Texas’s graduation-based pathway, continuous residence remains required.
  • “In-state tuition is not a ‘postsecondary education benefit’”: The panel treated discounted tuition as “prototypical monetary assistance”—a subsidy measured by the difference between in-state and out-of-state rates—and linked “amount, duration, and scope” language in § 1623(a) to the structure of tuition discounts.
  • “A citizen or national” means a single citizen qualifies: Relying on contextual interpretation (Asadi v. G.E. Energy ( USA), L.L.C.) and the Dictionary Act (1 U.S.C. § 1), the court rejected the notion that a narrow exception for some citizens could satisfy the condition precedent for granting the benefit to unlawfully present aliens. Otherwise, § 1623(a)’s “unless” clause would be drained of practical meaning.
  • Presumption against preemption: Because § 1623(a) contains express preemptive language, the court—tracking Young Conservatives and Puerto Rico v. Franklin Cal. Tax-Free Tr.—declined to apply any presumption against preemption.
  • Tenth Amendment / constitutional avoidance: The panel found no textual ambiguity to trigger avoidance (Nielsen v. Preap). It further characterized § 1623(a) as a self-executing eligibility limitation that “denies permission” rather than “issue[s] orders directly to the States,” citing Murphy v. NCAA to describe anti-commandeering but concluding the statute falls on the permissible side.
  • Severability: Applying Nat'l Fed'n of the Blind, Inc. v. Abbott, the panel refused to sever the residency component from the graduation-based pathway because doing so would create a broader eligibility rule Texas did not enact and would contradict the integrated design of the provision.

4) Why the court dismissed challenges to the consent judgment

Even though the movants sought to undo the consent judgment, the court treated party status as jurisdictional in the practical sense: under Edwards v. City of Hous. and U.S. ex rel. Eisenstein v. City of N.Y., nonparties cannot appeal a judgment they are not bound to as litigants unless they successfully intervene. Because intervention was denied, the court lacked jurisdiction to review the merits of the consent judgment at their request.

Impact

  • Substantive immigration/education policy: The decision cements (within the Fifth Circuit) that state residency-based in-state tuition eligibility for unlawfully present aliens conflicts with § 1623(a) unless the same benefit is available to all U.S. citizens and nationals irrespective of residency. This is likely to influence ongoing and future federal challenges to similar tuition schemes—an issue the dissent noted is being litigated across multiple states.
  • Litigation strategy: intervention after settlement: The opinion strengthens the ability of parties to end cases via consent judgments without reopening merits litigation through post-judgment intervention, where proposed intervenors cannot plead a plausible defense. The “futility-first” approach is particularly consequential in fast-settling, high-salience public-law cases.
  • Procedural precedent on intervention: By expressly applying futility screening to defense-side intervenors, the court raises the pleading burden for nonparties seeking to defend challenged laws when the original governmental defendant declines to litigate.
  • Appellate access limits: The court’s jurisdictional holding underscores a hard boundary: absent intervention, nonparties cannot appeal consent judgments. This may increase pressure on movants to intervene early and to include robust merits defenses with proposed pleadings.
  • Potential Supreme Court interest: The dissent’s reliance on Murphy v. NCAA to argue § 1623(a) is anti-commandeering (and its concerns about collusive/non-adverse suits) tees up questions that could attract further review, especially given the broader national pattern of similar challenges.

Complex Concepts Simplified

  • Express preemption: Congress can explicitly say federal law overrides state law. When it does, courts focus on the statutory text rather than presuming states retain authority.
  • § 1623(a)’s “on the basis of residence” test: The court treated this like “but-for” causation—if residence is a necessary condition for getting the benefit, the benefit is conferred “on the basis of” residence even if other requirements also apply.
  • In-state tuition as a “benefit”: The “benefit” is the discount (a subsidy) compared to out-of-state rates; it has an “amount” (the dollar difference), “duration” (how long the discount applies), and “scope” (what costs are reduced).
  • Intervention and “futility”: Intervention lets a nonparty become a party. But courts can deny intervention at the outset if the proposed intervenor’s claim/defense could not succeed as a matter of law—saving everyone from pointless litigation.
  • Why nonparties couldn’t appeal the consent judgment: Appellate rights generally belong to parties. If intervention is denied, the would-be intervenor stays a nonparty and can appeal only the denial of intervention, not the underlying merits judgment.
  • Anti-commandeering (Tenth Amendment): Congress generally may regulate private conduct, not “order” states to legislate. The majority viewed § 1623(a) as a permissible eligibility limitation; the dissent viewed it as an impermissible direct command to states.

Conclusion

The Fifth Circuit’s decision does two principal things. Substantively, it holds that 8 U.S.C. § 1623(a) expressly preempts the Texas provisions that enable unlawfully present aliens to receive in-state tuition based on Texas residence when out-of-state U.S. citizens do not receive the same benefit irrespective of residency. Procedurally, it strengthens intervention doctrine by confirming that futility screening applies equally to defense-side intervenors, and it reiterates that nonparties cannot appeal a consent judgment when intervention is denied.

The dissent highlights unresolved fault lines—Article III adverseness in rapid consent-judgment litigation and the post-Murphy v. NCAA boundary between preemption and commandeering—that may shape future challenges to § 1623(a) and to similar state tuition statutes.