New York state law struck down




The United States Court of Appeals for the Second Circuit has struck down New York State law which required U.S. citizenship or permanent residence (green card) as a condition for pharmacist license.

The lawsuit was commenced in August 2008 by New York attorney Krishnan Chittur on behalf of nine Indian American pharmacists before the federal court in Manhattan. Twenty-three other pharmacists, mostly Indian Americans, joined the lawsuit, contending that this provision violated the Equal Protection and Supremacy Clauses of the U.S. Constitution.
The federal court had granted a temporary stay of enforcement of the law during the pendency of the lawsuit.
The pharmacists were employed in various pharmacies in New York State.

They had passed the requisite test, and met all the other conditions for licensing, and had been granted a “limited license” to practice as a pharmacist in New York State by the N.Y. State Education Department for 3 years. They were all legal residents of the United States. Many had applied for permanent residency, and their applications were pending processing with the federal immigration authorities. Some others were on H1-B visas, which permitted temporary employment as pharmacists with specific employers, while others were under temporary “TN” visas issued under NAFTA, which required that their residence be temporary. But none of them had a green card, and they were denied a pharmacist license in New York. As a result, many of them had to forsake employment in New York, and were required to move to other States, or to commute for long distances to work as pharmacists in neighboring states such as Pennsylvania and New Jersey.
On September 30, 2010, the District Court struck down that the provision as violative of the U.S. Constitution. The State of New York appealed to United States Court of Appeals for the Second Circuit, which considered appeals in federal cases from the States of New York, Vermont, and Connecticut. In its opinion today, the United States Court of Appeals for the Second Circuit rejected that appeal, and upheld that decision.
Disagreeing with two other courts of appeal, the Second Circuit reasoned that any differentiation based on alienage would be strictly scrutinized by the Court. Such differentiation would be upheld only if the State could demonstrate a compelling interest. New York could not show any such compelling interest in preventing legal residents who did not have green cards from becoming pharmacists. Moreover, immigration law and policy was upto the federal government. Citing the recent Supreme Court decision overturning the Arizona law concerning illegal immigrants, the Court found that New York’s law was “an obstacle” to federal immigration law. Affirming the supremacy of federal law, the Court declared “New York cannot, in effect, drive from the state nonimmigrants who have federal permission to enter the United States to work. New York Education Law § 6805(1)(6) is unconstitutional.”
“We are delighted with the decision,” said Mr. Chittur. “After all, citizenship or green card have nothing to do with qualifications to be a pharmacist.”

The full decision is available at http://www.ca2.uscourts.gov/decisions (Paidi v. Mills). For further information, contact 212 370 0447 or kchittur@post.harvard.edu.