The Uncertain Terrain of State Occupational Licensing Laws for Noncitizens: A Preemption Analysis
Citation: 102 Geo L.J. 1597 (2014)
Part I of this Note sets the background framework for the preemption issue and includes an overview of the federal regulation of immigration, state licensing laws, the intersection of state occupational laws and immigration law, and the parameters of preemption of state licensing laws. To provide context to this background, Appendix 1 chronicles cases that have found state licensing laws to violate equal protection, and Appendix 2 details examples of state occupational licensing laws requiring certain immigration categories as a precondition for eligibility. Part II analyzes the conflicts between federal and state laws and includes a discussion of express, conflict, field, and obstacle preemption. Part III addresses the role of a federal statute, 8 U.S.C. § 1621, at the intersection between immigration and state occupational-licensing laws. A chart in Appendix 3 provides an example of the ambiguity created by § 1621 if the statute is interpreted to prevent states from offering benefits, including licenses, to certain categories of noncitizens that are eligible for other federal and state benefits.
This Note concludes that state laws denying legally present noncitizens
the opportunity to be considered for occupational licenses are preempted by federal regulation. The intersection between licensing and immigration is a contested area in which both levels of government within our federalist system have strong claims to power. In occupational licensing the best way to reconcile these competing claims is through an obstacle preemption analysis. There must be room for a state to maintain its traditional power to establish the professional
competencies required of any person who practices an occupation within its sovereign bounds. But, if a state makes eligibility for a license conditioned on particular immigration status, this stands as an obstacle to the full purpose of Congress and is preempted through the Supremacy Clause.