Wednesday, July 11, 2012

State law preventing "nonimmigrant aliens" from working as pharmacists is unconstitutional

Constitutional law students know that laws that discriminate based on alienage must satisfy strict (or close) judicial scrutiny in order to satisfy the Constitution. The State of New York did not know this, which is why it passed a law that said that non-immigrant aliens could no longer work as pharmacists after their waivers expired in 2009. The Court of Appeals strikes down the law under the Equal Protection Clause.

The case is Dandamudi v. Tisch, decided on July 10. Most of the plaintiffs have temporary work visas for their specialty occupations. All plaintiffs in this case have been legally authorized to reside and work in the United States for many years. Here's the problem: since 2009, New York law "provides that to be eligible for a pharmacist’s license in New York, an applicant must be either a U.S. Citizen or a [Legal Permanent Resident]. The statute bars all other aliens, including those with work authorization who legally reside in the United States, from becoming licensed pharmacists." This means the plaintiffs are unable to work as pharmacists in New York.

This law is unconstitutional. The Second Circuit (Wesley, Hall and Underhill [D.J.]) says,

the Supreme Court has repeatedly affirmed the general principle that alienage is a suspect classification and has only ever created two exceptions to that view. We decline to create a third in a case where the statute discriminates against aliens who have been granted the legal right to reside and work in the United States. Under a strict scrutiny analysis, § 6805(1)(6) of the New York Education Law violates the Equal Protection Clause. 
The first exception to the prohibition against this kind of discrimination "allows states to exclude aliens from political and governmental functions as long as the exclusion satisfies a rational basis review." The second exception allows the states to deny benefits and opportunities to undocumented immigrants. Neither exception applies here. So the State of New York tries to create a new exception. The Second Circuit says,

Without an existing basis for distinguishing [the] requirement that such statutes are strictly scrutinized, New York proposes a third exception—the Fourteenth Amendment’s strongest protections should apply only to virtual citizens, like [lawful permanent residents], and not to other lawfully admitted aliens who require a visa to remain in this country. Defendants argue that the Supreme Court’s strict scrutiny analysis of classifications based on “alienage” is inapplicable to classifications of nonimmigrant aliens and that only rational basis review of the statute is required.
The Second Circuit is not buying it. While the Supreme Court has never applied strict scrutiny analysis to laws that discriminate against non-immigrant aliens, that doesn't mean this kind of discrimination is legal. The Court has never distinguished between classes of legal resident aliens. "Nothing in the Supreme Court’s precedent counsels us to 'judicially craft[] a subset of aliens, scaled by how [we] perceive the aliens’ proximity to citizenship.'  Rather, the Court’s precedent supports drawing a distinction among aliens only as between lawfully admitted aliens and those who are in the United States illegally." The state law is thus unconstitutional because there no compelling interest to support it. The plaintiffs win.

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