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.
Jose 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.