The Trump Department of Justice just filed a major lawsuit against the Commonwealth of Virginia — United States v. Virginia, No. 3:25-cv-01067 (E.D. Va., filed December 30, 2025) — charging the state with handing illegal aliens cheaper in-state tuition rates that actual American citizens from other states cannot get. This is a big deal, and not just for the obvious reasons. It connects directly to the survival of our Second Amendment rights.
What the Lawsuit Actually Says
The DOJ complaint cuts right to the heart of the problem. Federal law — 8 U.S.C. § 1623, enacted by then-Speaker Newt Gingrich and signed by President Bill Clinton in 1996 — is about as plain as statutory language gets:
“Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.”
There are no exceptions. None. The word “notwithstanding” is a lawyer’s way of saying this trumps everything else on the books. Virginia, through legislation signed in 2021 and effective since 2022, has decided to ignore that entirely. Under Virginia Senate Bill 1387 (2021), unlawfully present aliens who establish Virginia residency qualify for reduced in-state tuition and state-administered financial aid at public colleges and universities — benefits that an American citizen from North Carolina or Maryland simply cannot get.
The Supremacy Clause Is Not Optional
Virginia is not operating in a gray area here. The DOJ’s preemption theory runs through the Supremacy Clause, U.S. Const. art. VI, cl. 2, which establishes that federal law is the supreme law of the land. When a state statute directly conflicts with a federal statute — and the conflict here is not subtle — the state law loses. Full stop.
My frustration with this situation goes beyond the legal mechanics. An illegal alien who broke into this country, or overstayed a visa, is now treated as a Virginia “resident” for tuition purposes. That word — resident — carries enormous legal weight. We should have a bright-line rule: if you are in the United States unlawfully, you cannot be a legal resident of any state for any purpose that confers public benefits. That is not cruelty; it is basic coherence.
The previous framework enabling this mess traces back to left-wing courts from decades past — think Plyler v. Doe, 457 U.S. 202 (1982), where a 5–4 Supreme Court held under the Equal Protection Clause that states cannot deny undocumented children K–12 schooling. That holding was already a stretch, and courts have been trying to expand its logic ever since. This is not the Roberts Court’s doing — it’s inherited judicial activism that the Trump administration is now rightfully pushing back against.
Executive Orders Are Being Enforced
This lawsuit did not materialize out of thin air. President Trump issued Executive Order 14218, “Ending Taxpayer Subsidization of Open Borders,” on February 19, 2025, directing federal agencies to identify and end programs that fund benefits for unlawfully present aliens. Executive Order 14287, “Protecting American Communities from Criminal Aliens,” signed April 28, 2025, followed — directing the Attorney General and DHS to move against sanctuary jurisdictions and state laws providing benefits such as in-state tuition to illegal aliens.
The DOJ is executing on those orders. That is how the executive branch is supposed to work. And it is encouraging to see the litigation machinery now targeting something this concrete — a specific state statute, a specific federal statute, a clear conflict.
Why This Matters for the Second Amendment
I want to be direct about the Second Amendment connection because I have been making this argument for years: you cannot look only at 2A case law and expect to protect gun rights. The threats come from every direction.
Here is the core of it. States like California, New York, Illinois, and Massachusetts attract and count millions of illegal aliens in the U.S. Census. More people in the census means more congressional seats. More congressional seats in those states means more votes for gun control, so-called assault weapon bans, and every other piece of anti-rights legislation those states love to export to Washington. Virginia’s in-state tuition law is one small piece of a broader pattern: using public benefits to subsidize and incentivize illegal aliens to settle in particular states, which then inflates those states’ congressional representation at the expense of states that actually enforce the law.
Alexander Hamilton and Thomas Jefferson grasped the basic principle. Import large numbers of people with no connection to American traditions, no investment in American constitutional values, and no shared heritage of individual liberty — and you will erode those values. This is not speculation; it is a predictable demographic and political consequence.
The Trump DOJ’s Virginia lawsuit is a step in the right direction. Shut down the incentives for illegal entry and illegal residence. Enforce the federal statute that Congress passed with bipartisan votes nearly thirty years ago. That is not radical — it is overdue.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.