Equal Protection, Preemption, and the Need for Uniform Regulation of Nonimmigrant Aliens

EQUAL PROTECTION, PREEMPTION, AND THE NEED FOR UNIFORM REGULATION OF NONIMMIGRANT ALIENS’ ABILITY TO OBTAIN PROFESSIONAL LICENSES Maxwell Blum* INTRODUCTION ..........................................................................................632 I. THE SKILLED GUEST WORKER PROGRAM ..........................................633 A. Exploring the Immigration Status of Skilled Guest Workers ...................................................................................633 B. The Policy Behind the Guest Worker Program .......................635 C. Disagreement with the Program ..............................................636 D. Attempts to Undermine the Program at the State Level ..........637 E. A Refresher on Constitutional ‘levels of scrutiny’ ..................638 II. LEGAL ISSUES ....................................................................................639 A. Do State Licensure Bans Violate the Equal Protection Clause? ....................................................................................639 1. Background Supreme Court Decisions................................639 2. The Circuit Split ..................................................................642 a. The Fifth Circuit Applies Rational Basis Review ........643 b. The Second Circuit Applies Strict Scrutiny .................645 c. Analysis........................................................................648 B. Are State Licensure Bans Preempted by Federal Law? .............651 1. Background Cases ...............................................................651 2. The Circuit Split ..................................................................654 a. The Fifth Circuit holds state licensure bans are not preempted ....................................................................655 b. The Second Circuit holds state licensure bans * J.D. Candidate, University of Pennsylvania Law School, 2014; B.A., Economics, University of California Los Angeles, 2011. The author thanks Professor Frank Goodman for his thoughts on early drafts of this Comment. The author also thanks the members of the University of Pennsylvania Journal of Business Law for their editorial assistance in preparing this Comment for publication. 631 632 U. OF PENNSYLVANIA JOURNAL OF BUSINESS LAW [Vol. 16:2 preempted ....................................................................656 c. Analysis..........................................................................657 i. Field Preemption ......................................................657 ii. Obstacle Preemption ...............................................659 CONCLUSION ..............................................................................................660 INTRODUCTION Is it constitutional for states to prevent skilled workers with temporary work visas from obtaining professional licenses? The Circuit Courts of Appeal have reached different answers. In the 2012 case Dandamudi v. Tisch, the Second Circuit ruled that a New York law which prevents “nonimmigrants,” a broad term describing aliens legally in the United States on a temporary basis, from receiving a license to practice pharmacy was unconstitutional as applied to certain skilled immigrants present in the United States on temporary visas.1 The Second Circuit’s opinion explicitly rejected a 2005 Fifth Circuit decision, LeClerc v. Webb, which affirmed the constitutionality of a Louisiana Supreme Court rule that prohibited all nonimmigrants, including skilled guest workers, from sitting for Louisiana’s bar exam.2 1. Dandamudi v. Tisch, 686 F.3d 66 (2d Cir. 2012). The decision overruled § 6805 (1)(6) of New York’s Education Law. Compare id. with N.Y. Educ. Law § 6805 (2009). The plaintiffs in the case had obtained licenses under a waiver to the requirement, but the waiver program ended in 2009. Dandamudi, 686 F.3d at 69. Other New York statutes attempted to do the same thing in other fields. For example, veterinary licenses were restricted to citizens and permanent residents. N.Y. Educ. Law § 6704 (6) (2007). That law was also held to violate the Equal Protection Clause and Supremacy Clause. Kirk v. New York State Dept. of Educ., 562 F. Supp. 2d 405, 405 (W.D.N.Y. 2008). It is important to note that Dandamudi was an ‘as applied’ challenge to the New York statute, as opposed to a facial challenge, as is clear from the lower court decision on appeal before the Second Circuit. Adusumelli v. Steiner, 740 F. Supp. 2d 582, 601 (S.D.N.Y. 2010). 2. LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005). The rule in question stated at the time of the suit: “[e]very applicant for admission to the Bar of this state shall . . . [b]e a citizen of the United States or a resident alien thereof.” Id. at 410. The rule “effectively prohibit[ed] . . . nonimmigrant aliens who are not entitled to live and work in the United States permanently from sitting for the Louisiana Bar.” Id. The rule was revised in 2009 to allow those authorized to work in the United States to sit for the exam. Sup. Ct. Rules, Rule 17 § (3)(b), 8 L.S.A. – R.S. The question of whether the rule was permissible to begin with remains open. Outside of the employment law context, the Sixth Circuit declined to strike down a Tennessee law that prevented nonimmigrant aliens from obtaining drivers licenses. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523 (6th Cir. 2007). The court relied on many of the arguments adopted by the majority in the LeClerc decision in reaching its decision. Id. at 532-33. These cases continue to influence other courts addressing questions regarding state laws that affect aliens. See, e.g., Ariz. Dream Act Coal. v. Brewer, No. CV12–02546 PHX DGC., 2013 WL 2128315, at *12 (D. Ariz. May 16, 2013) (discussing LeClerc v. Webb and League of United Latin American Citizens v. Bredesen and 2014] PROFESSIONAL LICENSES 633 The ultimate resolution of the split will help define the constitutional rights of skilled guest workers, who play an important role in the U.S. economy and whose ranks are likely to grow if and when Congress adopts immigration reform legislation. It will also open or close an avenue for opponents of the skilled guest worker program to influence policy at the state level. This comment argues that the Second Circuit was correct in rejecting the New York law as applied. State laws that discriminate against nonimmigrants violate the Equal Protection Clause and are preempted by the Immigration and Nationality Act when they are used to discriminate against skilled workers who are present in the United States on temporary work visas. This Comment begins by exploring the skilled guest worker program in the United States. In part II, it considers whether state licensure bans targeting these workers violate the Equal Protection Supremacy Clauses. The comment concludes by proposing a legislative solution to the problem. I. THE SKILLED GUEST WORKER PROGRAM A. Exploring the Immigration Status of Ski (...truncated)