Who Decides Who Can Practice Law?

The federal government wants the final word on who states license to practice law. And it wants to keep undocumented immigrants out.

Law booksAndrew LeSueurJose Manuel Gondinez-Samperio and Sergio Garcia are undocumented immigrants who, as children, overstayed tourist visas in the United States. Gondinez-Sampiero and Garcia have taken and passed the state bar exam in Florida and California, respectively. Now the supreme courts in both states are considering the question of whether the state or the federal government decides who can practice law in state courts. 

Immigration governance is mentioned only once in the Constitution. Article I, Section 8 grants Congress the power “to establish an uniform Rule of Naturalization.” The Tenth Amendment grants the states those matters of governance not enumerated in the Constitution nor preempted by federal law. Whether or not an individual may become a U.S. citizen is undoubtedly a question of federal law. But who governs how that individual is treated before earning citizenship is a tougher question

The California and Florida Boards of Bar Examiners support Gondinez-Sampiero’s and Garcia’s applications. But the Department of Justice has dealt a major blow to both cases, claiming that the immigrant applicants should not be sworn in and that federal law pre-empts state law regarding attorney regulation. In both cases, the DOJ had argued that federal law prohibits state bar associations from allowing undocumented immigrants to practice law.

Federal law prohibits states from issuing professional licenses that are paid for or subsidized by state funds to undocumented immigrants. State bar associations, which are privately funded with membership fees, assess whether applicants are morally and intellectually qualified to be attorneys. Publicly funded state supreme courts issue the licenses, but no public funds are specifically appropriated to this task in either Florida or California. 

The federal Congress has the authority to pass laws regulating how immigrants can become citizens. However, the Constitution does not enumerate immigration as a regulatory area reserved for the federal Congress. In Arizona v. United States, the Court determined that the federal government has so dominated immigration regulation that there is no room for states to make decisions.  

Justice Antonin Scalia dissented, writing that the Court’s ruling “deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there .... In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their sovereign prerogative to do so.”

The issue here is the inverse of the Arizona scenario. Arizona wanted power to exclude, while Florida and California are debating whether they have the power to legally include people living in their states, despite their immigration status. The legal calculus is different, but the principles related to sovereignty and federalism are the same.

There are few areas of “sovereign prerogative” more clearly left to states’ discretion than deciding who can be an officer in state court. The federal government does not license people to practice law, federal regulations do not show an intent to pre-empt states’ role in this area, and there’s no bar exam required at the federal level. There is a multi-state bar exam (MBE) that is identical in most states. Each state has total discretion over the MBE, including whether to offer the exam at all. 

It is difficult enough to finish college and law school, and more difficult still to pass the bar. Individuals who have completed these feats are precisely who we want serving as advocates and representatives. Refusing to certify undocumented immigrants would block many ambitious individuals from professional practice and the opportunity to represent and advocate for clients’ interests under private contract. 

In 2011, immigrants represented 19.4 percent of Florida's total population, compared to just under 17 percent percent in 2000 and 13 percent in 1990. Nationally, foreign-born individuals composed 13 percent of the total population in 2011, and in California that number is a whopping 27percent. The fact that Florida and California are facing this issue for the first time now demonstrates exactly how many hurdles these individuals have had to pass to make it to this point. 

Professional licensing laws have done enough already to disabuse us of the American Dream. Licensing undocumented immigrants will not open any immigration floodgates. If, on the other hand, the federal government is given the final say on professional licensing, that will lead to increasingly intrusive regulatory regimes. 

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Ted S.||

    All this will be solved if we institute single-payer legal care.

  • John C. Randolph||

    Given that they're both identified and it's know that they're not here legally, the feds can simply deport them, can't they?

    -jcr

  • John Jay.||

    They both probably qualify for Deferred Action for Childhood Arrivals, which is sort of like what the Dream Act would've been, except that DACA was enacted by fiat and can be revoked or changed at any time on the whim of the president, because apparently that's how we do things now.

  • R C Dean||

    Maybe they do qualify for DACA. If so, that makes this even worse, because DACA gives them a fast track for a green card.

    Which they still don't have. They are capable adults now, so the fact that they arrived here as children doesn't really matter. At this point in their lives, if they are still "undocumented", its because they have decided to break the immigration laws.

  • John Jay.||

    DACA doesn't give anyone a fast track (or any track) to a green card. Where did you hear that it does?

    With a few narrow exceptions that almost certainly don't apply here, there's really no way under current law for an undocumented immigrant to get legal status. DACA, for those who are eligible, is just a work permit and a revocable "promise" by the government that you won't be deported in the immediate future. And that's still a better deal than anything that was available before.

  • Agammamon||

    That's what I don't understand.

    the feds can deport 'em, the state can't (its not a state power). So why isn't who practices law in state courts something the federal government can decide.

    The fight over marijuana has already shown that the federal government can't force states to enforce federal laws.

  • pmains||

    Putting the issue of citizenship aside, Ciano is seriously saying that we should not deport lawyers?

  • UnCivilServant||

    I vote in favor of deporting lawyers. But who's take them?

  • R C Dean||

    I'm not at all clear how someone who has been breaking the law for years can get past the background check that lawyers have to pass. Typically, a history of lawbreaking is a bar to being licensed as an attorney, and some (many? all?) states require proof of citizenship or legal residency. An applicant who is currently a legal resident, but was here illegally for years, shouldn't pass the background check, so this should be a non-issue.

  • ||

    Yeah they were a pain in the ass about my MIP from college even though I had it dismissed. My law school couldn't have given a crap. The bar needed all sorts of documentation from the court that I didn't keep.

  • John Jay.||

    I'm not at all clear how someone who has been breaking the law for years can get past the background check that lawyers have to pass.

    Well that's (part of) what's being contested here. The issue of whether being carried across an imaginary line without permission during one's childhood is evidence of questionable "moral character".

  • R C Dean||

    The issue of whether being carried across an imaginary line

    I suspect these folks were carried across the Rio Grande, which is far from imaginary.

    I'd be curious to know whether any li'l fibs were told during the college application and financial support process. No idea if anyone asks after residency status in college, but if they applied for any federally supported loans, then I believe they would have been asked if they are citizens or have a green card.

  • R C Dean||

    Don't get me wrong; this is none of the fed's business.

    However, I detect a double standard in the making here, and that kinda pisses me off.

    "Oh, your business was repeatedly cited for regulatory problems. No license for you! But you, on the other hand, have broken federal law repeatedly for years, but you're, well, politically fashionable, so here, have a law license!"

  • BMFPitt||

    So you think that the first part of your example is how we should treat everyone?

  • Ted S.||

    He's already a lawyer. He doesn't want any new competition. ;-)

  • Almanian!||

    If they weren't fucking lawbreaking wetbacks - clearly a state power, as it's not one enumerated to the fedgov.

    HAAAAAAHAHAHAHAHAHAHAHA! Of course I mean "the President and/or one of this appointees or agency heads gets to decide!"

    Cause that's how we DO, yo.

  • R C Dean||

    However, the Constitution does not enumerate immigration as a regulatory area reserved for the federal Congress. In Arizona v. United States, the Court determined that the federal government has so dominated immigration regulation that there is no room for states to make decisions.

    As good a summary of the abdication of judicial review as I have seen. "The Constitution doesn't authorize it, but you've been doing it anyway, so go right ahead!"

  • Wyrd Wulf||

    The feds are going to make unconstitutional law and call it pre-emption. Not. Except that many of the SCOTUS never vote to limit federal power. They believe it is their job to expanded it at every possible opportunity, as was predicted so long ago.

  • bassjoe||

    As a disgruntled lawyer, who the hell wants to join this miserable profession anyways? Your fellow lawyers are generally dicks, clients lie to you constantly (and you have the honor of getting documentation that they are lying from the opposing side) and the legal process is clogged. I have dreams of flaming out of the profession in a blaze of unethical glory. Just because...

  • Duke||

    You sound a lot like...me. The legal “profession” has certainly made me a more miserable person for all the reasons you cite and more.

  • Duke||

    It is difficult enough to finish college and law school, and more difficult still to pass the bar. Individuals who have completed these feats are precisely who we want serving as advocates and representatives.

    If you've ever actually practiced law with other attorneys, you would surely disagree with the second sentence. Lawyer school isn’t like rocket physics school. Lawyers need a certain amount of street smarts, empathy, compassion in addition to cunning. I haven’t met nearly enough lawyers who are reasonable or willing to compromise on issues where compromise is appropriate. But I’ve met way too many lawyers who practice law as a form of war and who make personal attacks when you disagree with them.

  • country bumpkin||

    as someone who is trying to get into law school, comments like this make me nervous......

  • Duke||

    Don’t let me dissuade you. However, I did it because I thought it to be a safe way to become self-employed and earn a relatively high income.

    My bubble was burst when I found out that guys younger than me who started farming corn and selling land out of college were making about five to ten times what I was making the first eight years of my career.

  • amyebrinton||

    my buddy's half-sister makes ,$77, every hour on the computer. She has been unemployed for 8 months but last month her income was ,$21889, just working on the computer for a few hours. Check Out Your URL....

    http://www.Works23.com

  • DenverJay||

    A couple of points:

    1) I am usually the one here who is the hardest on illegal immigrants, but in the case of children brought here by their parents, its a little different. I have known people like this. Imagine being "deported" to a country where you didn't know anyone, had no history, possibly no family, your language skills are less than that of a native, and the economic situation is far worse than "home". Although I AM mad as hell that the executive believes he somehow has the power to ignore the law.

    2) Many lawyers are scum; but many others are noble defenders of the powerless against powerful forces in government or large corporations. To allow the Federal Government to decide who can practice law is like letting the Federal government decide who is a legitimate protester and who is disturbing the peace.

  • John Jay.||

    I agree with every word of this.

  • sidoneyhassler||

    my best friend's half-sister makes $63 hourly on the internet. She has been out of work for 10 months but last month her pay was $21312 just working on the internet for a few hours. read this post here

    http://www.Works23.com

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Progressive Puritans: From e-cigs to sex classifieds, the once transgressive left wants to criminalize fun.
  • Port Authoritarians: Chris Christie’s Bridgegate scandal
  • The Menace of Secret Government: Obama’s proposed intelligence reforms don’t safeguard civil liberties

SUBSCRIBE

advertisement