On April 28, 2025, the Trump Administration issued an Executive Order entitled “Protecting American Communities from Criminal Aliens”. This Executive Order has specific implications for states and cities that identify themselves as “sanctuary” jurisdictions for immigration purposes, and for institutions operating within them. For public institutions of higher education, the Executive Order also addresses in-state tuition rates being offered to non-U.S. citizens.

The basis for the Executive Order’s prohibitions is generally the supremacy of federal law over state law, particularly with respect to immigration. To that end, the Executive Order maintains that certain State and local officials are using their authority to violate Federal immigration laws and Federal criminal laws, including those prohibiting obstruction of justice (18 U.S.C. § 1501, et seq.), unlawfully harboring or hiring illegal aliens (8 USC § 1324), conspiracy against the United States (18 U.S.C. § 371), conspiracy to impede Federal law enforcement (18 U.S.C. § 372), and even the RICO Act (18 U.S.C. § 1961, et seq.).

The Executive Order then focuses on “sanctuary” jurisdictions – described by the Executive Order as “States and local jurisdictions that obstruct the enforcement of Federal immigration laws” and outlines the following:

• The Executive Order directs the Attorney General, in connection with the Secretary of Homeland Security, to identify and publish a list of the sanctuary jurisdictions within 30 days – and to maintain the list, updating as necessary.
• Those sanctuary jurisdictions identified by the publication are then to be notified by the Attorney General and Secretary of Homeland Security of their “defiance” of Federal immigration law enforcement and any applicable Federal criminal laws. The head of each executive department or agency, in coordination with the Director of the Office of Management and Budget, is then directed to identify the Federal funds (including grants and contracts) directed to those jurisdictions that may be eligible for suspension or termination.
  • Notably, just four days before the Executive Order’s issuance, a Federal Court in California enjoined the Trump administration from denying or conditioning the use of federal funds to sanctuary jurisdictions, the subject of executive orders 14,159 and 14,218. See City and Cnty of San Francisco v. Trump, No. 25-CV-01350-WHO (N.D. Cal. April 24, 2025), ECF 111. The Executive Order does not direct the agencies to withhold or deny those federal funds, but it is possible that the funds will be subject to revocation if or when the injunction is terminated.
• If the noticed sanctuary jurisdictions do not cease the noticed violations, the Executive Order directs the Attorney General and the Secretary of Homeland Security to “pursue all necessary legal remedies and enforcement measures to end these violations and bring such jurisdictions into compliance with the laws of the United States.”

The Executive Order additionally requires the Secretary of Homeland Security, in coordination with the Attorney General, to develop guidance and/or rules to ensure that “aliens” in sanctuary jurisdictions are not in receipt of Federal public benefits within the meaning of 8 U.S.C. § 1611(c) – whether from private entities or otherwise. This requirement will likely lead to eligibility verification for those receiving the benefits, with either the private entity itself or the governmental entity on behalf of the private entity conducting such verification.

Finally, the Executive Order directs the Attorney General, in consultation with the Secretary of Homeland Security and appropriate agency heads, to identify and take appropriate action “to stop the enforcement of State and local laws, regulations, policies, and practices favoring aliens, over any groups of American citizens that are unlawful, preempted by Federal law, or otherwise unenforceable.” The Executive Order specifically mentions “State laws that provide in-State higher education tuition to aliens but not to out-of-state American citizens.” The Order does not further define who it considers to be “aliens.” In assessing whether this Executive Order applies to them, public institutions of higher education should examine whether their in-state tuition policies allow for in-state tuition for graduates who are residents of the state – in which case the Order applies, or whether their tuition policies allow for in-state tuition for any graduate of an in-state high school, in which case it may not.

This Executive Order has potentially wide-ranging implications for institutions of higher education, particularly those located in sanctuary jurisdictions and who offer in-state tuition benefits to undocumented students. First, public and private institutions in sanctuary jurisdictions should be aware that any federal funds the institution receives by virtue of its affiliation with the sanctuary jurisdiction may be jeopardized. Further, public institutions that provide reduced cost tuition for undocumented students should monitor any legal challenges to this Executive Order and check their applicable state laws.

According to Higher Ed Immigration Portal, a platform that “integrates data, policy analysis, and resources to support DACA and undocumented, refugee, other immigrant, and international students,” in-state tuition is available to undocumented students in 24 states and the District of Columbia. Given how many states are potentially affected, legal action against this Executive Order is likely . The form the cases will take will depend on how the federal agencies act on the Executive Order’s directive to “identify and take appropriate action to stop the enforcement” of the targeted state laws.