Can Federal Courts Pay Non-Citizen Law Clerks?

The federal courts are grappling with the consequences of a little-noticed new law that bars the payment of federal salaries to non-U.S. citizens. The law could affect more than two dozen currently hired judicial law clerks who hail from nations including Canada and Australia.

The statute, Section 704 of Public Law 111-117, was included in an omnibus budget measure passed last December. It requires that "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 ... whose post of duty is in the continental United States unless such person: (1) is a citizen of the United States." It allows exceptions for those who are seeking U.S. citizenship, or have refugee or asylum status.

The law affects all federal employers, and many agencies hire at least some non-citizens. Civil Service rules call for U.S. citizenship for federal employees, but over the years, statutes and executive orders have allowed exceptions for citizens of U.S. allies and other categories. But the new law, whose origin is unclear, is a more blanket prohibition.

The new provision appears to have gone unnoticed -- or at least unpublicized -- in other federal workplaces. But reports of the law and its possible impact on the law clerks have circulated within the judiciary. It is not uncommon for students from Canada and other nations to attend U.S. law schools, where they apply and compete for U.S. court clerkships like any other students.

When asked about the situation, officials of the Administrative Office of the U.S. Court declined comment.

Comments

[John]

I wonder, too, what this does to the thousands of non-US citizens who work for the US Dept. of State and are sent to the US for training, sometimes several months' worth.

[Eric van Ginkel]

if not unconstitutional, this law will probably conflict with treaty obligations guaranteeing non-discrimination on basis of nationality.