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NABP Legal Briefs: Citizenship Kane
By Dale J. Atkinson, JD
Originally published in the January 2011 NABP Newsletter
The qualifications for licensure as a pharmacist of each respective jurisdiction are set forth in statute, generally referred to as the practice act. As set forth in the Model State Pharmacy Act and Model Rules of the National Association of Boards of Pharmacy, the qualifications for licensure include:
Section 302. Qualifications for Licensure by Examination.
To obtain a license to engage in the Practice of Pharmacy, an applicant for licensure by examination shall:
(1) have submitted a written application in the form prescribed by the Board of Pharmacy;
(2) have attained the age of majority;
(3) be of good moral character;
(4) have graduated and received the first professional degree from a college or school of Pharmacy that has been approved by the Board of Pharmacy;
(5) have graduated from a foreign college of Pharmacy, completed a transcript verification program, taken and passed a college of Pharmacy equivalency examination program, and completed a process of communication-ability testing as defined under Board of Pharmacy regulations so that it is ensured that the applicant meets standards necessary to protect public health and safety;
(6) have completed a Pharmacy practice experience program or other program that has been approved by the Board of Pharmacy, or demonstrated to the Board’s satisfaction that experience in the Practice of Pharmacy which meets or exceeds the minimum Pharmacy practice experience requirements of the Board;
(7) have successfully passed an examination or examinations given by the Board of Pharmacy; and
(8) have paid the fees specified by the Board of Pharmacy for the examination and any related materials, and have paid for the issuance of the license.
Although additional laws may apply, theoretically, applicants who meet the aforementioned requirements are entitled to receive a license. Some regulatory boards may impose requirements for licensure in addition to those listed. Consider the following.
A non-permanent resident alien in the United States, a South African citizen, applied for and was granted a “Vocational Nursing License” by the Texas Board of Nursing. The licensee graduated at the top of her class from an accredited nursing school in Texas and successfully completed the National Council Licensure Examination for Practical Nurses, developed and administered by the National Council of State Boards of Nursing.
For reference, non-permanent resident aliens are citizens of another country who reside in the US under a Conditional Resident Alien Card, Temporary Resident Card, work visa, student visa, or some other permit for a specified period of time. Without seeking citizenship or some other recognized immigration status, non-permanent resident aliens can only reside in the US for a limited period of time. Further, non-permanent resident aliens may be authorized to work in the US, so long as they possess a valid Social Security account number card or other acceptable documentation evidencing authorization of employment in this country. In this matter, the Texas licensee was lawfully residing in and eligible for employment during her temporary period in the US.
Shortly after receiving her license, the Texas licensee (hereinafter referred to as applicant) applied for licensure as a practical nurse (PN) with the Louisiana State Board of Practical Nurse Examiners (board). The Louisiana practice act for nursing requires candidates for licensure as a practical nurse to not only meet the education, examination, and moral character requirements, but also calls for applicants to “be a citizen of the United States or have taken out his first citizenship papers.”
Based upon the citizenship prerequisite to licensure contained in the statute, the board returned to the applicant her application with instructions to seek permanent resident status or intent to become a citizen (Form N-300) and reapply for licensure. However, the applicant cannot file a Form N-300 expressing intent to seek citizenship in the US until she becomes a permanent resident. The applicant has applied to become a permanent resident, but apparently such a process often takes several years.
Based upon the return of the application for licensure as a PN in Louisiana, the applicant filed litigation in the US District Court for the Eastern District of Louisiana. The applicant argued that the licensure statute related to the citizenship requirement violated the constitutional rights of her and others similarly situated. She argued violations under the US Constitution, specifically rights related to due process and equal protection, the Supremacy Clause, the right to travel (due process and equal protection grounds), and the Dormant Commerce Clause. The parties filed cross motions for summary judgment (arguing that there are no material facts in dispute and the court can decide the case as a matter of law without the need for factual determinations).
Legal challenges to statutes under certain constitutional principles are subject to either strict, intermediate, or rational basis scrutiny based upon the “class” of persons impacted by the particular law. The threshold most easily met to uphold a challenged law is a rational basis justification. That is, whether there is some rational basis for enacting the law that even remotely supports the law under review. Conversely, under a strict scrutiny, the court determines whether the state in enacting the legislation has a legitimate interest to protect and that the law is the least restrictive means of protecting such state interest, generally a challenging burden.
On August 30, 2010, the district court judge rendered his opinion and analysis of the respective cross motions for summary judgment. First, the court assessed the applicant’s immigration status and the fact that she has lived in the US for over eight years. Although she argued inconsistent positions in her various filings, the court held that the applicant was a “non-resident alien, lawfully residing within the United States.”
In her equal protection arguments, the applicant argued that the applicable Louisiana law violated the Fourteenth Amendment in that it created an arbitrary discrimination among applicants and potential applicants for licensure based solely on whether a person is a US citizen. The applicant argued that classifications based on one’s alienage are inherently suspect and subject to strict scrutiny by the court.
The court rejected this strict scrutiny threshold propounded by the applicant. Following recent cases, it held that nonimmigrant aliens are not necessarily a suspect class dictating a strict scrutiny analysis of the challenged law requiring citizenship as a prerequisite to licensure. The court noted that permanent resident aliens are a suspect class and laws impacting such a class would be judged under a strict scrutiny analysis. After rejecting the strict scrutiny argument, the court undertook an equal protection analysis using a rational basis standard.
While the court opined some editorial thoughts and hesitation regarding enforcement of the citizenship criteria for licensure, it noted that the law will be sustained so long as it advances a legitimate state interest, in spite of the fact that it “seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Indeed, the court noted the fact that neighboring Texas’ law contradicts the Louisiana citizenship requirement. However, and based upon the fact that the Louisiana legislature concluded that one’s nonresident alien status and temporary authority to remain in the US could impede the nursing board’s regulatory and disciplinary efforts, the court rejected the applicant’s equal protection arguments.
The applicant also argued that her due process rights under the Fourteenth Amendment were violated by the citizenship requirement as her alien status has no rational relationship on her fitness or abilities to perform the duties of a PN. Following precedent, the court held that procedural due process rights do not vest in one who has failed to seek a hearing before filing suit in court. Because the applicant did not seek a hearing on her application for licensure, the court rejected this argument and held that her due process claims must fail.
The applicant also argued that the Supremacy Clause of the US Constitution afforded her rights based upon the fact that federal immigration law addresses her status and authority within the US and that Louisiana cannot enact a law that impedes immigration rights. In short, the Supremacy Clause of the Constitution requires that a state law that conflicts with any federal law must be invalidated. The court rejected this argument and held that although the federal law has primary responsibility for immigration issues, “not every state enactment which in any way deals with aliens . . . is preempted.” Based upon the state’s conclusion that the temporary status as a nonimmigrant alien could impede the regulatory and disciplinary efforts of a board and that the state has a right to exercise its police powers, the court upheld the law and rejected the applicant arguments under the Supremacy Clause.
Imbedded in the due process and equal protection clauses of the Constitution is a fundamental right to travel and the applicant argued that the Louisiana citizenship requirement violates this interest. The court noted that a state law violates the right to travel when it actually deters travel, or intends primarily to deter travel, or uses a classification that serves to penalize the right to travel. In the current case, the court held that the statute in question does not impede any individual from entering or exiting the state of Louisiana. While she may be delayed in being granted the right to practice nursing, the applicant is not prohibited from travel to and from Louisiana. Thus, the court rejected the right to travel arguments of the applicant.
Finally, the applicant argued that the Louisiana law impedes commerce to a degree that renders it unconstitutional. The court found that the citizenship requirement in Louisiana law was localized and did not attempt to inhibit the flow of commerce. The law was found not to be based upon economic protectionism and further did not unjustifiably burden interstate commerce. Again, the court rejected the applicant’s arguments and upheld the citizenship requirement. Based upon the foregoing, the court granted summary judgment in favor of the board of nursing and denied the relief requested by the applicant.
This case resolves, at least in Louisiana, the very interesting question of whether a state can enact legislation which requires applicants for licensure of a regulated profession to be of a certain immigration status. Boards of pharmacy are encouraged to have some working knowledge of the complex legal issues at stake when addressing this question, as well as how to phrase such inquiries on the applications and renewals for licensure.
Van Staden v Martin, 2010 WL 3523029 (E.D. LA 2010)
