Mark A Ivener, A Law Corporation

District Court Finds NY Education Law Limiting Pharmacist Licenses to U.S. Citizens, LPRs Unconstitutional

The U.S. District Court for New York ruled in a consolidated case (PDF) on September 29, 2010, that a New York education law was unconstitutional because it violated the plaintiffs’ rights under the Equal Protection Clause of the U.S. Constitution and encroached on federal immigration authority.

The plaintiffs were 26 otherwise qualified pharmacists with temporary authorization to work in the U.S. Twenty-two of them had obtained H-1B visas. Most had applied for permanent residence and all had remained in the U.S. in compliance with federal immigration laws while their cases were pending. New York Education Law § 6805(1)(6) provides that “[t]o qualify for a pharmacist’s license, an applicant shall…be a United States citizen or an alien lawfully admitted for permanent residence in the United States.” The law excludes, among others, those who have received federal authorization to work in the U.S. temporarily.

Among other things, the court said:

The theory is that courts must be wary of state laws that exploit aliens’ political powerlessness by denying them the fruits of their societal contributions. Here, the State does not explain why this theory would apply any less to nonimmigrants, who also work, pay taxes, contribute to society, and have no political voice while they remain in this country. At one point, the State seems to suggest that non-LPR classifications should not receive strict scrutiny because non-LPRs have a different “constitutional status” by virtue of their weaker ties to the country….But what does it mean to say that nonimmigrants have a different “constitutional status” than LPRs, or that nonimmigrants “need not” be protected to the same extent as LPRs? The Supreme Court has already established that all aliens, even undocumented aliens, have rights under the equal protection clause.

The court pointed out that New York purported to ameliorate the dangers posed by transient or judgment-proof pharmacists through § 6805(1)(6), which was aimed at only a tiny subclass of pharmacists, instead of imposing generally applicable insurance or similar malpractice-related requirements upon the entire profession. The state also did not put forth any evidence that transience among New York pharmacists threatened public health or that nonimmigrant pharmacists, as a class, were considerably more transient than LPR and U.S. citizen pharmacists. As a consequence, the court said, the law did nothing to reduce the dangers of transience among citizen and LPR pharmacists while at the same time excluding longtime nonimmigrant residents, many of whom will become LPRs as soon as their pending green card applications are processed. “The question is not close; under any form of heightened scrutiny, § 6805(1)(6) fails,” the court concluded.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.