No More Non-Citizen Law Clerks?

by Peter Spiro

That appears to be the upshot of section 704 of Public Law 111-117, a doorstop appropriations measure enacted last December:

SEC. 704. Unless otherwise specified during the current fiscal year, no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States (including any agency the majority of the stock of which is owned by the Government of the United States) whose post of duty is in the continental United States unless such person: (1) is a citizen of the United States; (2) is a person who is lawfully admitted for permanent residence and is seeking citizenship as outlined in 8 U.S.C. 1324b(a)(3)(B); (3) is a person who is admitted as a refugee under 8 U.S.C. 1157 or is granted asylum under 8 U.S.C. 1158 and has filed a declaration of intention to become a lawful permanent resident and then a citizen when eligible; or (4) is a person who owes allegiance to the United States.

So much for the practice under which citizens of select foreign countries (those with mutual defense arrangements) have been permitted to serve as judicial law clerks.

All may not be lost, though, for the fifth column.  The Administrative Office of the U.S. Courts has issued guidance advising judges that they can still put those noncitizens on payroll in light “confusion about [legislative] intent” and ACUS efforts to seek “clarifying legislation.”  (Existing employees are grandfathered.)  In the meantime, noncitizens who have clerkships lined up might want to apply for naturalization.  Although it’s somewhat opaque (see the text of 8 USC 1324b(a)(3)B)), it appears that the second exception allows the employment of such aliens where they have commenced the naturalization process within six months of becoming eligible to do apply.  It will be interesting to see whether this was just an oversight or whether Congress meant to shut the door on the noncitizen payroll, an entirely plausible possibility in these anti-immigrant times.

2 Responses

  1. Peter-
    What’s your –or the ACUS’s–  take on the meaning of “continental United States” in this provision?  Are federal courts in Puerto Rico, Guam, US Virgin Islands (or even Hawaii and Alaska) not covered by this?  If not, it is a strange drafting error.

  2. Peggy, yes, a strange limitation — ACUS takes the legislation at its word in this respect, not to apply in Puerto Rico, the USVI, and Guam.  I assume the exception is meant mostly to apply to the employment of locals in diplomatic and military facilities outside of the US altogether.

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