A colleague gently chided me last month for apparently being obtuse when I blogged about those three undocumented law school grads: Sergio Garcia, Cesar Vargas and Jose Godinez-Samperio.
I’ve blogged before about the problems facing talented minors illegally brought into the U.S. by their parents.
But between mouthfuls at lunch, my lawyer friend thought I hadn’t articulated clearly enough where I stood. Say what? Ambiguity from a lawyer? (Also, in case he ever wants to have lunch again, that’s not my lawyer buddy in the accompanying photo).
So it’s timely to bring up the topic again especially on the day when the U.S. Supreme Court heard oral arguments over Arizona’s SB 1070 anti-illegal immigration law.
The state law, which has been emulated by five other states – none of them border states, was enacted as one local pundit explained today, not because Arizona’s residents are racist or “because they want the cops chasing little children but because they’re fed up with what passes for federal enforcement of immigration laws.”
I wouldn’t know about all that. No doubt there were people in the 1950’s who weren’t supporting miscegenation laws because they were racists and against interracial marriage. No, some thought they were fighting a Communist plot threatening to undermine the country.
But as for SB 1070, here’s what I do know. The bill provided a convenient “secure the borders” fig leaf for those folks also harboring politically-incorrect inclinations like the senate bill’s author, Russell Pearce who still finds it difficult to explain away some of the company he’s kept.
So to clear up any uncertainty, let me quote that more important guy who often says, “Let me be clear.” On the question: “Should undocumented immigrants be eligible for admission to the state bar?” My answer is, “Yes, amigo.”
The six reasons why.
First, a state board of bar examiners is charged only with inquiring into the competency and character of applicants for admission to practice. If on completing their inquiry and on not finding an applicant deficient in fitness or capacity, it must admit him.
The bar examiners have no right to contravene the 14th Amendment’s Due Process Clause to deprive a candidate “the opportunity to qualify for the practice of law.” They can require “high standards of qualifications” but “in applying permissible standards, officers of the State cannot exclude an applicant when there is no basis for finding that he fails to meet these standards, or when their action is invidiously discriminatory.” See Rudolph Schware, Petitioner, v. Board of Bar Examiners of New Mexico 353 U.S. 232 (1957), where bar examiners refused to let Schware take the New Mexico bar exam because he had not shown “good moral character” — mainly because he once belonged to the Communist Party.
Second, I think a blanket rule can’t and shouldn’t be applied for bar admissions. For good or ill, when it comes to satisfying the competency and moral character requirements to practice law in a jurisdiction, each candidate independently stands or falls on their own merits.
And if lawyers know anything, they know the unpredictability of state bars. Indeed, just last month, for instance, a divided court admitted a convicted felon to the NY bar.
And depending on the jurisdiction, a convicted felon can become an attorney after passing a background check. For another example, Marie Ferreboueuf successfully overcame her past to practice law in California.
So excuse me for missing the proportionality discussion while trying to figure out where Godinez-Samperio’s overstayed tourist visa fits into the felonious hierarchy of “good moral character” determinations.
Third, it matters that all 3 candidates were unlawfully brought into the U.S. by their parents. As minors, they lacked capacity to consent. Indeed, in the case of Sergio Garcia, the would-be California lawyer even asks whether it’s right to impose a moral duty on a blameless baby unlawfully brought into the country through no fault of his own. “What was my moral duty at 17 months?,” he asks.
Fourth, I don’t know that we even get to Plyler v. Doe 457 U.S. 202 (1982) since it only applies to educating illegally admitted students up to 12th grade – – – not college let alone law school. In Plyler, the U.S. Supreme Court struck down a Texas statute withholding funds from local school districts for the education of children not “legally admitted” into the United States, and which had authorized local school districts to deny them enrollment. The Court found the law violated the Equal Protection Clause of the Fourteenth Amendment.
Still, I can see the policy support underpinning Plyler, i.e., children should not be penalized for the illegal acts of their parents and that there are higher future social costs incurred when access to education is barred as a means to upward mobility.
Fifth, foreign trained, non-resident lawyers are already permitted to sit for bar exams in some states and to be admitted to practice in the U.S.
Sixth, and perhaps most persuasively are the pragmatic, economic reasons – – grounded in incentive theory and value-maximization, i.e., that ‘the law abhors waste.’
It’s inefficient and wasteful to discard years of sweat equity and economic investment by failing to “maximize the economic well-being” of people living here almost their entire lives.
Admittedly, an imperfect comparison but it reminds me of the doctrine of economic waste in contract cases and how destruction of perfectly good and usable property rarely makes sense.
And it’s why I also agree with Judge Posner that “the common law is best explained as if the judges were trying to maximize economic welfare.” 
One can also point to the debate over the 1964 Civil Rights Act and how antidiscrimination rules were advocated in defense of another underclass explaining thereby that, “The failure of our society to extend job opportunities to the Negro is an economic waste. The purchasing power of the country is not fully developed.” 
And it is this last rationale that we’re committing economic waste, which provides the foundation for ‘The Dream Act.’ Having spent the resources to train and educate talented young people like Sergio Garcia, Cesar Vargas and Jose Godinez-Samperio, how can we now turn them away from making their contributions to society?
 Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977) p. 5.
 H. Rep. no 9014, 88th Cong. 1st Sess., 1963, 149 (views of additional Republican Sponsors).
Credits: “Meating people is easy” by joshbousel posted at Flickr via Creative Commons-licensed content for noncommercial use requiring attribution and share alike distribution; Fig Leaf for David, D. Brucciani & Co, ca. 1857. V&A Museum no. REPRO.1857A-161, by VAwebteam under Creative Commons Attribution-ShareAlike 3.0 License at Wikipedia Commons.