Ticket to Ride: Standardizing Licensure Portability for Military Spouses

Author:Adam W. Kersey
Position:Judge Advocate, U. S. Army
Pages:115-169
 
FREE EXCERPT
2013] LICENSURE PORTABILITY FOR MILITARY SPOUSES 115
TICKET TO RIDE:
STANDARDIZING LICENSURE PORTABILITY FOR
MILITARY SPOUSES
MAJOR ADAM W. KERSEY*
We’re redoubling our efforts to help military spouses
pursue their educations and careers . . . . We’re going to
help spouses get that degree, find that job, or start that
new business. We want every company in America to
know our military spouses and veterans have the skills
and the dedication, and our nation is more competitive
when we tap their incredible talents.1
I. Introduction
Beginning in early 2012, the First Lady of the United States,
Michelle Obama, along with the Second Lady of the United States, Dr.
Jill Biden, announced a call to action in support of professionally
licensed military spouses.2 Noting that “more than one of every three
* Judge Advocate, U. S. Army. Presently assigned as Instructor, Air Force Judge
Advocate General’s School, Maxwell Air Force Base, Alabama. LL.M., 2013, The Judge
Advocate General’s School, U.S. Army, Charlottesville, Virginia; J.D., 2008, College of
William and Mary, Marshall-Wythe School of Law; B.A., 2001, DePauw University.
Previous assignments include Senior Defense Counsel, Fort Benning Field Office, Fort
Benning, Georgia, 2011–2012; Senior Trial Counsel, Fort Benning, Georgia, 2010–2011;
Trial Counsel, Fort Benning, Georgia, 2009–2010; Battalion Personnel Officer, 53d
Transportation Battalion, Fort McPherson, Georgia, 2004–2005; Movement Control
Officer, 53d Transportation Battalion, Fort McPherson, Georgia, 2003–2004; Executive
Officer, 32d Combat Service Support Company, 3/2 Stryker Brigade Combat Team, Fort
Lewis, Washington, 2002–2003; Platoon Leader, 32d Combat Service Support Company,
3/2 Stryker Brigade Combat Team, Fort Lewis, Washington, 2001–2002. Member of the
bars of Indiana, Southern District of Indiana, United States Air Force Court of Criminal
Appeals, U.S. Court of Appeals for the Armed Forces, and Supreme Court of the United
States. This article was submitted in partial completion of the Master of Laws
requirements of the 61st Judge Advocate Officer Graduate Course.
1 U.S. DEPT OF THE TREASURY & U.S. DEPT OF DEF., SUPPORTING OUR MILITARY
FAMILIES: BEST PRACTICES FOR STREAMLINING OCCUPATIONAL LICENSING ACROSS STATE
LINES 1 (2012) [hereinafter BEST PRACTICES] (quoting President Barack Obama, January
24, 2011).
2 Press Release, First Lady Michelle Obama, Remarks by the First Lady and Dr. Biden
on Military Spouse Licensing (Feb. 15, 2012), available at http://www.whitehouse.
116 MILITARY LAW REVIEW [Vol. 218
military spouses in the labor force have [sic] jobs that require some kind
of professional license or certification,”3 Mrs. Obama and Dr. Biden
asked state legislatures to pass laws aimed at easing licensure portability
for professionally licensed or certified spouses of service members.4 By
mid-2012, nearly half of the states acted on their request, passing some
form of protection for professionally licensed military spouse.5 Despite
the advancements toward licensure portability, not all states have
considered the issue, including many states with substantial military
populations.6 The states that did pass enactments aimed at licensure
portability for professionally licensed military spouse did so as the
products of their own state “laboratories.”7 As such, the protections of
each state took a number of different, incongruous forms, addressing
differing professions,8 and providing few baseline protections for the
professional spouse of a federalized service member. Instead of allowing
states to continue the haphazard creation of “protections” for
professional military spouses, this article considers the possibility of the
federal government taking a direct, proactive role in pursuing
standardized licensure portability protections for professionally licensed
military spouses through state/federal bargaining, or, alternately, through
interstate compact or model act.
gov/the-press-office/2012/02/15/remarks-first-lady-and-dr-biden-military-spouse-
licensing.
3 Id.
4 Id.
5 23 States Have Now Passed Pro-Military Spouse Portability Measures, THE WHITE
HOUSE (June 23, 2012), http://www.whitehouse.gov/blog/2012/06/26/23-states-have-
now-passed-pro-military-spouse-license-portability-measures.
6 See Issue 2: Facilitate Military Spouse Transition Through Licensure Portability and
Eligibility for Unemployment Compensation, USA 4 MILITARY FAMILIES (Mar. 13, 2012),
http://www.usa4militaryfamilies.dod.mil/pls/psgprodf?p=USA4:ISSUE:0::::P2_ISSUE:2
[hereinafter USA 4 MILITARY FAMILIES] (providing a visual reference for states with
licensure portability measures for military spouses or unemployment compensation); see
also U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE U.S.: 2012, tbl.508, at 334
(2012), available at http://www.census.gov/compendia/statab/2012/tables/12s0509.pdf
(listing military and civilian personnel in installations by state).
7 Justice Louis Brandeis analogized individual states to “laboratories” in New State Ice
Co. v. Liebmann, 285 U.S. 262 (1932), writing, “[i]t is one of the happy incidents of the
federal system that a single courageous state may, if its citizens choose, serve as a
laboratory; and try novel social and economic experiments without risk to the rest of the
country.” Id. at 311 (Brandeis, J., dissenting).
8 Compare N.C. GEN. STAT. ANN. § 93B-15.1 (2012) (allowing licensure by endorsement
for military spouses yet explicitly excluding those involved in the practice of law), with
IDAHO BAR COMMN RULES R. 229 (2012) (specifically providing licensure portability for
military spouses engaged in the practice of law).
2013] LICENSURE PORTABILITY FOR MILITARY SPOUSES 117
Part II of this article looks at the military spouse, specifically the
evolution of the professionally licensed military spouse, in a historical
context. Part III examines the portability measures already enacted that
affect professionally licensed military spouses, focusing specifically on
the prevalent applicability to state business and occupation codes.9 Part
IV then considers the possibility of standardizing protections for the
professional military spouse through one of three methods: first, the
article considers standardization by federal enactment under Congress’s
authority to tax and spend (state/federal bargaining)10 or through
Congress’s enumerated War Powers, the legal justification supporting
the recently enacted Military Spouses Residency Relief Act;11 second,
the article looks at standardization by interstate compact;12 and third, the
article examines the possibility of standardization by model act.
Ultimately, the article concludes that standardization by interstate
compact provides the best method to address the significant
disadvantages experienced by the professionally licensed military
spouse.
II. The Military Spouse
A. Military Spouse in Historical Context
A century ago, the federal government, the War Department, and the
Department of the Army had little concern for the military spouse. The
military spouse was considered no more than a “camp follower”13
without right or privilege. In her 1885 memoirs, Elizabeth Bacon Custer,
widow of the famous Lieutenant Colonel George Armstrong Custer,
lamented the absence of legal and regulatory provisions for the care of
the military wife, given the “value” of the spouse to the military member
and organization.
9 See infra notes 69–76 and accompanying text.
10 See U.S. CONST. art. I, § 8, cls. 1 & 12; see also Dameron v. Brodhead, 345 U.S. 322,
325 (1953); South Dakota v. Dole, 483 U.S. 203 (1987).
11 Military Spouses Residency Relief Act, Pub. L. No. 111-97, 123 Stat. 3007 (2009).
12 See U.S. CONST. art. I, § 10, cl. 3.
13 Elizabeth Mason Finlayson, A Study of the Wife of the Army Officer: Her Academic
and Career Preparation, Her Current Employment and Volunteer Services 18 (May 7,
1969) (unpublished Ed.D. dissertation, George Washington University) (on file with
author) (quoting ELIZABETH B. CUSTER, BOOTS AND SADDLES 105 (1961)).

To continue reading

FREE SIGN UP