Brief of Amicus Curiae Ad Hoc Coalition of Utah Law Professors in Support of Petitioners, In Re Mary Doe and Jane Doe, Case No. 20180806-Sc, Utah Supreme Court, supporting the admission of undocumented immigrants to the Utah State Bar

Abstract

In 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193, 110 Stat. 2105, now codified in relevant part at 8 U.S.C. §§ 1601 et seq. Sections 1621(a) and (d) of Title 8 make certain aliens ineligible “for any State or local public benefit,” in the absence “of a State law [that] affirmatively provides for such eligibility.” These provisions do not prohibit the admission of otherwise eligible undocumented immigrants to the practice of law in Utah, and this Court should enter an order allowing all undocumented immigrants to apply for admission to the practice of law in Utah.

First, a license to practice law in Utah is not a “State or local public benefit” as defined in 8 U.S.C. § 1621(c)(1) because it is not “provided by an agency of a State or local government or by appropriated funds of a State or local government.” 8 U.S.C. § 1621(c)(1)(A). The Utah Supreme Court, which issues licenses to practice law in Utah, is not “an agency of a State or local government” but an independent branch of state government granted plenary power under the Utah Constitution to administer and regulate admission to the Utah Bar. Utah Const. art. VIII, § 4. Neither is the Utah State Bar, the entity to which the Utah Supreme Court has delegated the administrative tasks of bar admission, “an agency of a State or local government.” Rather, the Utah State Bar is incorporated as a private non-profit entity and receives no public funds. See Exhibit A, Certificate of Existence: Utah State Bar, Utah Department of Commerce and Exhibit B, Declaration of John C. Baldwin, Executive Director of the Utah Bar. Moreover, in Utah, admission to the Bar is not provided through “appropriated funds of a State or local government” but through fees charged directly to applicants and members of the Bar. Only private funds finance law licensing in Utah. Because the Utah Supreme Court is not “an agency of a State or local government” and law licensing in Utah is financed by private funds rather than by “appropriated funds of a State or local government,” section 1621 does not apply to bar admission in Utah.

Second, even if this Court decides that a license to practice law in Utah is a “State or local public benefit” under section 1621(c), this Court may nonetheless authorize the Utah State Bar to admit otherwise eligible undocumented immigrants to practice law in Utah. Section 1621(d) of Title 8 allows a state to provide a “State or local public benefit” for which an alien would otherwise be ineligible under section 1621(a) through an “enactment of a State law . . . which affirmatively provides for such eligibility.” 8 U.S.C. § 1621(d). Because the Utah Constitution provides the Utah Supreme Court the exclusive power to regulate law licensing in Utah, Utah Const. art. VIII, this Court is the only entity able to opt-out of section 1621(c)’s prohibitions with respect to law licensing in Utah. Therefore, section 1621(d) should not be read to require a legislative-enactment opt-out.

Principles of constitutional avoidance, federalism, and the Tenth Amendment exact respect for Utah’s structure of its sovereign powers. Congress cannot commandeer state sovereignty to its own ends. Through its state constitution, Utah has chosen to give authority over bar admission to its courts, without requiring additional action by its legislature. Accordingly, the power to override the prohibitions in section 1621(c) with respect to law licensing in Utah may be exercised by this Court, a power the state legislature cannot usurp. Congress has no power to decree otherwise, and section 1621(d) should not be read to do so.

Finally, the Court should enter an order that allows all undocumented immigrants, rather than the narrow class of undocumented immigrants specified in the Petitioners’ proposed order, to apply for admission to the practice of law in Utah. Such a rule would conserve judicial resources by avoiding this Court’s separate consideration of every possible variation on immigration status that might make an individual ineligible for receipt of a “State or local public benefit” under section 1621. In addition, a broad order and rule would be consistent with the underlying purposes of section 1621.

Keywords: Utah Supreme Court, Utah State Bar, undocumented immigrants, license to practice law, Personal Responsibility and Work Opportunity Reconciliation Act, state or local public benefit