A federal appeals court recently struck down a New York state law restricting the issuance of pharmacist licenses to U.S. citizens and lawful permanent residents (LPRs). The court ruled that such law violated the constitutional guarantee of equal protection.
The plaintiffs in Paidi v. Mills were non-immigrant aliens residing in New York, most of whom held H-1B temporary worker visas. Many of the plaintiffs had applied for a green card while some already had employment authorization documents. All of them obtained a New York pharmacist’s license. However, it was only a “limited” type of license which was granted under a waiver provision of the law.
Under the New York statute, only U.S. citizens and LPRs were eligible to obtain a pharmacist’s license. The law used to provide for a three-year waiver of the citizenship/LPR requirement, but this waiver provision expired in 2006. Licenses issued under the waiver were set to expire in 2009, which meant that the plaintiffs would no longer be able to work legally as pharmacists in the state.
This led them to file a lawsuit in district court against the officials in charge of enforcing the law. The plaintiffs claimed that the law was unconstitutional because it violated the equal protection clause of the U.S. constitution. The district court agreed with the plaintiffs and permanently enjoined the state officials from enforcing the law.
On appeal to the U.S. Court of Appeals for the Second Circuit, the state officials argued that the court should review the law using the rational basis standard. This is a low-level standard of judicial review which simply means that if there is a rational basis to support the law, the law should be upheld.
The Circuit Court rejected this argument. It said that state statutes that give disparate treatment to aliens are reviewed using the highest standard of analysis, called strict scrutiny.
For a law to pass strict scrutiny, it must further a compelling government interest. The law must also be narrowly drawn, meaning that there must be no other less restrictive means to meet that government interest.
The Court held that strict scrutiny should be applied to the New York law that discriminates against aliens who have been lawfully admitted to reside and work in the United States. The court found that the state had no compelling justification for discriminating based on alienage.
The court brushed aside the state’s argument that the non-immigrant pharmacists’ potential transience was a threat to public health. The Court said that there was no evidence that nonimmigrant pharmacists were more transient than LPR and citizen pharmacists, and that citizenship or permanent residency did not guarantee against potential transience.
The statute was also not narrowly tailored, said the Court, because there were other ways to limit the dangers of potentially transient pharmacists, such as through malpractice insurance.
Even if the law withstood the equal protection challenge, the Court said that it would not survive a challenge on preemption grounds. Federal preemption means that a state law can be invalidated if it conflicts with federal law.
Although the case was decided on equal protection grounds, the Court couldn’t help but note that New York has created an obstacle to the accomplishment and execution of federal immigration law. Congress has allowed non-LPRs and non-citizens to perform specialty occupations
as long as they were professionally qualified, but by making immigration status a professional qualification New York caused them to be ineligible to do so.
In concluding that the law was unconstitutional, the Court reiterated a Supreme Court dictum that “the assertion of an authority to deny to aliens the opportunity to earn a livelihood when lawfully admitted to the state would be tantamount to the assertion of the right to deny them entrance, for in ordinary cases they cannot live where they cannot work.”
Because of this ruling, New York may not legally make immigration status a qualification for a professional license. But because other courts have decided the issue of alienage and state licensing differently, this decision has created a circuit split which the Supreme Court will most likely have to resolve soon.