Thursday, October 3, 2013

Fundamental Right or "Public Benefit?"

Wants to Pursue His Vocation
Sergio Garcia recently passed the California Bar Exam on the first try and wants to practice law.  There is one problem.  His parents brought him to this country illegally when he was a child, with the result that his presence in the United States is unlawful.  While the California State Bar wants to admit him to the Bar, and the California Attorney General agrees, the Obama Administration is trying to stand in the way.  In particular, the Administration contends that allowing an individual to practice law is a conferral of a "public benefit," akin to an outright grant of money such as student loans, food stamps, or farm subsidies.  (See here for the government's brief).  As a result, it says, federal law requires the California courts to deny Mr. Garcia's application, because states may not grant individuals illegally present in this country such benefits unless the legislature of the state has expressly authorized the conferral of such a benefit.  See 8 U.S.C. § 1621.  
The administration's position has some basis in the statute, which defines "public benefit" to include "grant[s]," "commercial licenses" and "professional licenses . . . provided by any state agency or appropriated funds of the state."  See 8 U.S.C.1621(c).  (However, the California Committee of Bar Examiners has authored a powerful response, contending that bar admission does not satisfy the statutory definition of "public benefit.")   Moreover, the characterization of the practice of law as a state-conferred benefit accurately reflects how many members of the Bar view the legal vocation.  No less an authority than the American Bar Association, for instance, asserts that the ability to practice law is a "privilege" that society "confers" on individuals, with the result that lawyers are thereby obligated to provide some members of society free legal services in return.  (See here).  Some academics concur.   See e.g. Deborah Rhode, Cultures of Commitment: Pro Bono for Lawyers and Law Students, 67 Fordham L. Rev. 2415, 2419  (1999) (contending that lawyers' "privileged status" thereby obligates them to provide free legal services to others).  The Supreme Court has generally bolstered this characterization, by refusing to protect vocational liberty against arbitrary abridgments.   Thus, under current law, states may exclude individuals from their chosen vocation so long as a court can identify a single, hypothetical purpose that such exclusion might serve, without regard to whether the law actually serves that purpose.   See Williamson v. Lee Optical, 348 U.S. 483 (1955); United States v. Carolene Products, 304 U.S. 144 (1938) (sustaining ban on interstate shipment of filled milk by invoking baseless and pretextual health rationale).    Indeed, the Supreme Court has in one case rejected an occupational liberty challenges without identifying any plausible purpose served by the restriction.  See Ferguson v. Skupra, 372 U.S. 726, 728-31 (1963).  See also Nebbia v. New York, 291 U.S. 502 (1934) (sustaining minimum price regulation of independent retailers without identifying any plausible object of the law).  Compare Baird v. Arizona State Bar, 401 U.S. 1 (1971) (state cannot exclude individuals from a vocation because of political associations protected by the First Amendment).   One federal court has even gone so far as to hold that states may infringe occupational liberty for the sole purpose of enriching incumbent producers at the expense of consumers and potential entrants.  See Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004).  (But see here for a discussion of a more recent decision rejecting this approach.)   The only exception is for those rare cases in which such exclusion violates an independent constitutional provision.   See e.g. Baird v. Arizona State Bar, 401 U.S. 1 (1971) (state cannot exclude individuals from a vocation because of political associations protected by the First Amendment).  There as a time, of course, when the Supreme Court took a different view, protecting liberty of occupation from infringements that did not serve a valid purpose.  See e.g. Allgeyer v. Louisiana, 165 U.S. 578 (1897) (unanimous). 

Thus, the Obama Administration's claim that a professional or commercial license is properly deemed a "public benefit" that governments generously confer on their citizens has substantial basis in statutory and constitutional law.  While defensible, this argument is still troubling.  After all, no one would seriously contend that the right to worship (or not) as one pleases or the right to write a poem or a song is a "public benefit" that the State can confer or withhold at will, regardless whether the individual exercising the right is lawfully present in the U.S.A.  Still, Congress, other public officials and academics have asserted, with a straight face, that the right to pursue a chosen vocation is no right at all, but instead a form of largess the State may (or may not) shower on its citizens.   The contemporary rhetorical plausibility of this argument illustrates just how far the national and state governments have exceeded the proper scope of regulation in a truly free society.

As previously explained on this blog, however, government exists to facilitate the exercise of liberty, not to restrict it. As James Madison, the cousin of this Blog's namesake, explained in Federalist 10 and elsewhere, individuals leave the state of nature and form governments so as to enhance their liberty, what Madison called "the faculties of acquiring property." To be sure, entering society requires individuals to forfeit a portion of their liberties, thereby empowering the State to restrict some freedoms.  In particular, individuals who leave the state of nature and enter society give up their right to restrict the freedom of others, on the understanding that others who enter society have given up the same rights.  This social contract between such individuals both empowers the state to act but also places limits on the scope of state authority to regulate, tax and spend.  In particular, states may ban murder, battery, theft, fraud and other conduct that harms others and raise revenue via taxation to fund the police and courts necessary to enforce such restrictions.  However, states may not restrain harmless conduct, whether pursued unilaterally or in concert with others, including the pursuit of harmless occupations.  On the contrary, states should facilitate such conduct by protecting property rights, enforcing contracts and the like.  States that do purport to prohibit such conduct and impose taxes to support such regulation do so without any basis in the social contract from which they purport to derive their authority.  

Thus, as Madison put it, in his 1792 on Property:
"That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called."

Thus, refusal to ban consensual transactions that have no impact on third parties is not a conferral of a "public benefit" but instead reflects the State's respect for the limits of the authority granted by the social contract and enforcement of an institutional framework that facilitates the exercise of fundamental freedoms.

No doubt Mr. Garcia's continued presence in the U.S.A. itself raises difficult questions of immigration policy.  Some would argue that, because his parents brought him here as a child, he should remain indefinitely, so long as he obeys the law and remains a productive member of society.  Others would contend that he should return to the country of his birth and join those who are applying through normal channels for permission to enter the United States lawfully.  However one resolves this dispute, one thing should be clear:  Mr. Garcia is not asking for public largess but instead seeks to hold the State to the terms of the social contract that Madison described.