State supreme courts seldom have cause to strike down a federal law, but a pair of applications to the Utah State Bar has set the stage for the Utah Supreme Court to protect our state’s independent judiciary from federal encroachment. By declining to apply an overreaching federal law, the Utah Supreme Court can vindicate important principles of federalism and affirm the separation of powers among Utah’s branches of government.

The applications for membership in the Utah State Bar come from two apparently qualified applicants who are Americans but for lack of a passport. These applicants are Dreamers, immigrants who were brought into the United States as children. Though their parents may not have committed any immigration offense more serious than seeking a better life for their children by entering the United States illegally, the sins of their parents haunt these Dreamers. They find themselves consigned to immigration purgatory and a growing caste of undocumented Americans.

These American Dreamers have known no other home, and they attended and graduated from public high schools, colleges and law schools in the United States. They now seek to practice law in Utah, but their admission to the state bar has been blocked by a federal law, which prohibits undocumented aliens from receiving a professional license from a state unless the state has enacted a law specifically authorizing such licensure.

These two Dreamers have filed a petition urging the Utah Supreme Court to adopt a new rule that would allow for the admission of undocumented immigrants to the Utah State Bar. This request prompted the Utah Supreme Court to ask the U.S. Department of Justice and the Utah Attorney General’s Office to opine on whether the Utah Supreme Court can “enact ... a state law” as desired by these Dreamers.

The answer is no.

Courts apply and interpret laws. Courts do not enact them. Only the Utah Legislature enacts state laws by passing legislation either with the consent of the governor or by overriding the governor’s veto.

So the Dreamers’ petition should not result in the promulgation of a judicial rule masquerading as a state law. Instead, the Utah Supreme Court should find that the federal statute is unconstitutional because it invades Utah’s sovereignty and violates our state’s separation of powers.

Thanks to the Supremacy Clause, federal laws normally trump state laws and state constitutions, but the U.S. Constitution also recognizes that there are limits to the reach of congressional legislation. For example, the Tenth Amendment to the U.S. Constitution provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The federal statute here is fundamentally flawed and should be deemed unconstitutional because it violates the Tenth Amendment. The administration of state courts is a core function of a state’s government, and the federal statute trespasses on the sovereign authority of the state of Utah by attempting to set certain qualifications to practice law within our state. This power is expressly and exclusively vested in the Utah Supreme Court by Article VIII, Section 4 of the Utah Constitution, which provides “The [Utah] Supreme Court by rule shall govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law.”

Because the federal statute purports to impose conditions on the Utah Supreme Court’s ability to define the qualifications for admission to practice law in Utah, the federal statute transgresses the principles of federalism underpinning the United States Constitution.

The federal statute is also unconstitutional because it violates the separation of powers doctrine. The Utah Constitution, like its federal counterpart, establishes three co-equal branches of government: the legislative, the executive and the judiciary.

The Utah Constitution assigns to the judiciary the sole power to determine the qualifications to practice law in Utah. To the extent the federal statute might empower the Utah Legislature to enact a law permitting undocumented immigrants to become eligible to receive a Utah law license, the federal statute violates the separation of powers doctrine by shifting a judicial prerogative to the legislative branch.

The net result is that the Utah Supreme Court should affirm Utah’s sovereignty and the independence of our state’s judiciary from an overreaching and unconstitutional federal statute. The Utah Supreme Court is — and should remain — the sole arbiter of the qualifications and standards for admittance to the Utah State Bar.

(Francisco Kjolseth | The Salt Lake Tribune) Brett Tolman talks about his shift from being Utah's top prosecutor as U.S. Attorney for Utah to now working as a government reformer who is critical of the system he once was a part of.
Paul C. Burke

Brett L. Tolman and Paul C. Burke represent the Utah Minority Bar Association, which filed a motion on Tuesday to submit an amicus curiae brief to the Utah Supreme Court addressing the pending petition.