Wednesday, July 5, 2017
Immigration Article of the Day: Michael A. Olivas, Within You Without You: Undocumented Lawyers, DACA, and Occupational Licensing
Michael A. Olivas, Within You Without You: Undocumented Lawyers, DACA, and Occupational Licensing, 52 Valparaiso Law Review (forthcoming) (2016 Justice Robert D. Rucker Lecture) (sson to be available on SSRN)
This essay is an early reflection upon several intersecting narratives, ones that exist in several dimensions. In it, I situate several legal narrative flows that exist in a tectonic fashion, cruising by each other to contain the Earth’s magma core, but occasionally and spectacularly colliding and bumping up again each other, leaving fresh landscapes and jagged oceanic scars. How else can observers understand and reconcile the different stories of complex immigration categories, the architecture of occupational licensing, and the intersecting state and federal dimensions that form this Joycean novel? Who would have ever thought that an undocumented immigrant, without legal status in the U.S., could be practicing law with the support and accommodation by the California state bar licensing authority, the California Legislature, the State’s Governor, and the California Supreme Court? Or that President Barack Obama’s Department of Justice would argue against the move? And who could have predicted the fertile Obama use in 2012 of Deferred Action for Childhood Arrivals (DACA), broadening the traditional narrow scope of discretionary administrative enforcement authority, with the effect of transforming over three quarters of a million undocumented youth into DACAmented youth —after many years of record immigration enforcement, deportations, and removals of unauthorized adults and children?
I write to frame a multi-year research project that I have fit into a full scholarly agenda, working with legions of law and graduate students to gather for the first time, basic immigration eligibility information that serves as statutory, administrative, common law, and local prerequisites for entering licensed professions, high and low. The framework sets out national data across all United States jurisdictions, with the admissions standards and citizenship/immigration status required for entry into medicine, nursing, attorney, and K-12 teaching professions, and drills down on several large state jurisdictions in detailed case studies across dozens of licensed occupations in California, Texas, Illinois, and New York. No national study exists—that my research has found, and I have looked everywhere and shagged any number of false leads—and the sheer size of such an enterprise has likely precluded others from this snipe hunt.
But once the data are assembled and reviewed, fascinating trends have emerged. As befits a multi-jurisdictional dataset, there are major inconsistencies, gaps, and mistakes that are in evidence, and virtually every state has multiple examples. While no one could have anticipated the explosive growth occasioned by DACA and its unique vectors implicating occupational licensing, it is growing clear that most licensure or certification authorities have not thought through immigration and citizenship requirements for their professions in any systematic fashion. Virtually all have some form of formal or informal citizenship admissions criteria, but as DACA and caselaw have revealed, this tectonic plate is shifting and disturbing other plates. In geology, the earth’s lithosphere—sub-layers of the crust—moves in regular and punctuated fashion, creating continental drift, faults, and trenches across the globe. Its counterpart in immigration and licensing law is the changing and moving universe of immigration law and the growing state regulation of labor and employment, necessitating special tools of legal analysis.
In this vein, I offer preliminary thoughts about the various immigration classifications implicated by business and occupational licensing. Secondly, I set out to describe briefly the overall architectural features of licensing in U.S. society, revealing multidimensional forces at play, both at the state and federal levels. Finally, I will situate the data, pointing out both intuitive issues and a number of counter-intuitive considerations that make a unified occupational licensing field-theory virtually impossible. As a result, many jurisdictions will continue to muddle along, deciding challenges and mounting reforms on a case by case basis. Each of these areas has its own narrative flow, and the overall effect is confusing and ineffective. Even so, these data will assist all serious scholars, elected officials, professional license authorities, and policy analysts who will work in these fields.