May a State Limit Pharmacy Licensure Based on Citizenship?

Immigration status is the key issue in this case for a group of pharmacists who hold "limited licenses."

Issue of the Case

May a state legislature enact a provision in the pharmacy practice act that restricts licensure of pharmacists to those who are US citizens or hold “permanent resident” status, thereby preventing others in the country who have other classifications under federal immigration law from engaging in professional practice?

Facts of the Case

Twenty-six pharmacists had temporary authorizations from the federal government to work in the United States. Twenty-two of them had H1-B visas, which federal law specifies may be granted to citizens of other countries who come “temporarily to the United States to perform services…in a specialty occupation.” The other 4 pharmacists were in a temporary worker category designated “TN” under the provisions in the North American Free Trade Agreement. That statute authorizes admission to the United States for “a citizen of Canada or Mexico who seeks temporary entry as a business person to engage in business activities at a professional level.”

All members of the group had received “limited licenses” to practice pharmacy in the state under a provision in the pharmacy practice act that extended a 3-year waiver of the requirement that applicants for licensure be a US citizen or a permanent resident, with the latter also being known as a holder of a “green card.” That exception creating the possibility of “limited licenses” expired during 2006, so that the 3-year period for these pharmacists would run out during 2009.

Prior to the expiration of that 3-year period, the group filed an action in federal court seeking to have the statute requiring that an individual be a US citizen or permanent resident in order to be granted a license declared unconstitutional. Additionally, they sought a permanent injunction barring the state board from enforcing that requirement.

The Court’s Ruling

The court ruled in favor of the pharmacists, granting their motions for summary judgment in their favor and entering the permanent injunction they sought.

The Court’s Reasoning

At the outset of the case decision, the court emphasized that the question under consideration was whether the statute restricting licensure to citizens and permanent residents was unconstitutional because it denies equal protection of the laws. The Equal Protection Clause in the US Constitution, found in the Fourteenth Amendment, states that “No state shall deny to any person within its jurisdiction the equal protection of the laws.” It is noteworthy that this wording is clearly focused on activities by state governments and is expansive in that it addresses denial of citizens and noncitizens alike, ie, “any person.”

The court also noted that a second legal issue in the case is whether the statute is unconstitutional because “it encroaches upon the exclusive federal power to regulate immigration.”

Quoting a US Supreme Court decision, this trial court used as its point of departure the statement that “state classifications based on alienage are subject to ‘strict judicial scrutiny.’” Further, it drew from another Supreme Court decision a statement that “the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.”

The court reviewed the argument advanced by the attorneys for the state government seeking to have the statutory provision upheld. They had identified a provision in federal immigration laws that read, “If an occupation requires a state or local license for an individual to fully perform the duties of that occupation, an alien … seeking (a temporary visa to work) in that occupation must have that license prior to approval of the petition (for a visa).” In their view, this provision in federal law meant that pharmacy licensure was primary and immigration status was secondary.

The court addressed that argument by pointing out that “The state interprets this licensure requirement to mean that it may deny (people) the opportunity to practice pharmacy or other occupations based on their immigration status, because the provision leaves professional licensing decisions to the states.” However, the court said this interpretation would mean that states are rewriting the federal statutes governing this area.

The court said, “A far more logical interpretation is that the licensure provision prescribes an old and familiar division of labor: the federal government decides which aliens may enter and with what restrictions, and the states decide which individuals have the professional competence and qualifications to obtain pharmacy and other licenses.”

The court cited a quotation from a 1910 case: “The police power of the states extends to the regulation of certain trades and callings, particularly those which closely concern the public health.” PT

Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.