ADUSUMELLI v. STEINER

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f Under this theory, state classifications drawn by

The first step in any Equal Protection analysis is to determine the applicable level of judicial scrutiny. That determination turns on whether the law creates a suspect classification or burdens a fundamental right:

[U]nless the legislature utilizes a classification that is inherently invidious because it disadvantages a suspect class, or because it infringes upon the exercise of a fundamental right, [courts] exercise only a limited review power over the acts of legislatures. Under this limited review power, we will uphold forms of state action under the Equal Protection Clause so long as the classification at issue bears some rational relationship to a legitimate state interest. On the other hand, where a suspect class or a fundamental right is at issue in the classification, we apply a more searching form of scrutiny. Thus, the threshold question for any analysis under the Equal Protection Clause is whether the highly deferential rational basis review applies, or instead whether the legislation involves a suspect class or a fundamental right resulting in the application of a stricter form of scrutiny.

Hayden v. Paterson, 594 F.3d 150, 169-70 (2d Cir. 2010). The two forms of heightened scrutiny are (1) strict scrutiny, under which a law will be upheld only if it is "narrowly tailored" to meet "compelling government objectives;" and (2) intermediate scrutiny, which requires that a law be "substantially related" to "important government objectives." Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000).

immigration status are not suspect so long as they group green card holders with citizens in the favored class and discriminate only against non-LPRs.

LeClerc and LULAC support the State's argument. In LeClerc, a divided Fifth Circuit panel upheld a Louisiana law that barred all aliens except LPRs from taking the state bar exam. 419 F.3d 405 (5th Cir. 2005). The LeClerc court found that Equal Protection only requires strict scrutiny of alienage classifications that differentiate between LPRs and citizens:

The [Supreme] Court's treatment of resident aliens [] rests upon pragmatic recognition that [permanent] resident aliens are similarly situated to citizens in their economic, social, and civic (as opposed to political) conditions. . . . Like citizens, [permanent] resident aliens may not be deported, are entitled to reside permanently in the United States, may serve, voluntarily or by conscription, in the military, are entitled to state aid benefits, and pay taxes on the same bases as citizens.

Id. at 418. The court reasoned that non-LPRs do not bear the same badges of quasi-citizenship and that laws discriminating against non-LPRs as a class are therefore not suspect. Id. In LULAC, a divided Sixth Circuit panel relied on the reasoning in LeClerc to uphold a similar Tennessee law, which rendered non-LPR aliens ineligible to obtain driver's licenses. 500 F.3d at 533-34.

LeClerc and LULAC's adoption of the LPR distinction has prompted criticism from jurists and commentators. In both circuit cases, dissenting judges argued that alienage is a suspect classification for reasons that apply to LPRs and nonimmigrants alike. "[T]he basis for aliens' suspect class designation seems to be premised on aliens' inability to vote, and thus their impotence in the political process, and the long history of invidious discrimination against them." Id. at 540 (Gilman, J., dissenting) (quoting LeClerc, 419 F.3d at 428-29 (Stewart, J., dissenting)). Judge Gilman's dissent in LULAC canvassed a body of commentary leveling similar criticisms at LeClerc — namely, that the Supreme Court's alienage jurisprudence has never distinguished between LPRs and other aliens, and that Graham's rationale encompasses all legal aliens, including nonimmigrants. Id. at 541 (quoting Recent Cases, Fifth Circuit Holds That Louisiana Can Prevent Nonimmigrant Aliens From Sitting for the Bar, 119 Harv. L. Rev. 669, 673-74 (2005) ("[T]he Supreme Court [has] never differentiated equal protection review based on status as an immigrant or a nonimmigrant alien. . . . That nonimmigrant aliens work under a different tax structure, cannot serve in the military, and face mandatory departure from the United States, for example, does not justify offering them less constitutional protection. . . .")). One year after LULAC, Judge Siragusa of the Western District of New York relied on the LeClerc and LULAC dissents to hold that a New York law barring non-LPR aliens from the practice of veterinary medicine (in other words, the corollary to § 6805(1)(6) for the veterinary profession) violated the Equal Protection Clause. Kirk v. New York State Dep't of Ed., 562 F. Supp. 2d 405, 411 (2008) ("[C]lassifications based on `alienage' generally [are] inherently suspect. . . . [T]he Court finds that the challenged statute must be reviewed under the strict scrutiny standard, and that it fails to pass such scrutiny.").

The disagreement over the LPR distinction encompasses two disputed questions. First, what are the differences between LPRs and nonimmigrant aliens? And second, do those differences properly distinguish the underpinnings of the doctrine that aliens are a suspect class? The first question is factual, but it has generated disagreement nonetheless. Both the LeClerc and LULAC courts relied upon a series of purported differences between LPRs and nonimmigrants. LeClerc summarized those differences as follows:

Nonimmigrant aliens' status is far more constricted than that of resident aliens. Nonimmigrant aliens are admitted to the United States only for the duration of their status, and on the express condition they have "no intention of abandoning" their countries of origin and do not intend to seek permanent residence in the United States. They are admitted, remain, and must depart at the discretion of the Attorney General. Plaintiffs acknowledge that nonimmigrant aliens may not serve in the U.S. military, are subject to strict employment restrictions, incur differential tax treatment, and may be denied federal welfare benefits.

419 F.3d at 418-19. LULAC used a similar formulation:

Like citizens, [LPRs] pay taxes, support the economy, serve in the armed forces, and are entitled to reside permanently in the United States. Temporary resident aliens, on the other hand, are admitted to the United States only for the duration of their authorized status, are not permitted to serve in the U.S. military, are subject to strict employment restrictions, incur differential tax treatment, and may be denied federal welfare benefits.

500 F.3d at 533.

As the dissenters noted, aspects of these summaries are misleading. First, nonimmigrants like plaintiffs do pay taxes, often on the same terms as citizens and LPRs. Nonimmigrants are considered U.S. residents for tax purposes so long as they are "physically present in the U.S. for at least 31 calendar days during the course of the year and 183 days during the 3 year period that includes the current year and two previous years immediately before it." LeClerc, 419 F.3d at 427 n. 1 (Stewart, J., dissenting) (citing 26 U.S.C. § 7701(b)). Many nonimmigrants, including many of the plaintiffs here, meet this test and accordingly bear the same tax obligations as citizens and LPRs. (E.g., Farrell 56.1 ¶ 19.) Those who do not meet the residency test still pay taxes on all

income generated within the U.S., but not on income generated abroad. LeClerc, 419 F.3d at 419 n. 45. Thus, when LULAC said that LPRs "pay taxes [and] support the economy" while nonimmigrants "incur differential tax treatment," what it meant was that some nonimmigrants do not pay taxes on foreign income.

The Circuit majorities' descriptions of nonimmigrants' transience are also inaccurate. LeClerc stated "[n]onimmigrant aliens are admitted to the United States only for the duration of their status, and on the express condition they have `no intention of abandoning' their countries of origin and do not intend to seek permanent residence in the United States." 419 F.3d at 418-19. But many nonimmigrants, including many of the plaintiffs here, are in the process of applying for green cards. And the nonimmigrant veterinarian-plaintiff in Kirk actually became an LPR by the time the case reached the Second Circuit, prompting the circuit to vacate the district court's decision for mootness. No. 08-3683-CV (2d Cir. June 24, 2009) ("We find this appeal to be moot in light of the United States's grant of permanent legal residency status to Plaintiff."). Such are the effects of the State Department's doctrine of dual intent, under which nonimmigrants may "both express a short term intent to remain in the United States temporarily (so as not to contravene the requirements of the visa under which they entered) and a long term intent to remain in the United States permanently (so that they may apply for adjustment of status)." LeClerc, 419 F.3d at 429 (Stewart, J., dissenting). Thus, though nonimmigrants are perhaps more likely than LPRs to leave the United States, the distinctions between the two immigration statuses are not quite as LeClerc and LULAC presented them. Both LPRs and nonimmigrants have foreign citizenship and might opt to leave the United States permanently for their country of citizenship in the future. Similarly, both might remain in the United States permanently — a nonimmigrant by obtaining LPR status, and an LPR by simply exercising his right to permanent residence. The difference between the two statuses (and it is a difference) is that a nonimmigrant may not be able to remain in the United States if he wishes.

As for the other features of nonimmigrant status that the circuit majorities relied upon — ineligibility for military service and certain federal benefits, and limited work permission (in other words, permission to work only in a specified field) — neither the circuits nor defendants here explain how these federally imposed restrictions relate to state policy or otherwise impact the Equal Protection analysis. See Takahashi, 334 U.S. at 419 ("It does not follow . . . that because the United States regulates immigration and naturalization . . . a state can adopt one or more of the same classifications to prevent lawfully admitted aliens within its borders from earning a living in the same way that other state inhabitants earn their living."). In this Court's view, then, the oft-discussed differences between LPR and nonimmigrant status boil down to one potentially important difference — nonimmigrants have not yet obtained permission to reside in the United States permanently — and a slew of other differences of uncertain relevance (nonimmigrants are barred from the United States military, some of them do not pay taxes on foreign income, they can be denied certain federal benefits, and they are typically admitted for the purpose of practicing a particular profession, like pharmacy).

The remaining question is whether these differences properly distinguish the constitutional rule that alienage-based classifications are suspect under the Equal Protection Clause. The Graham court, by providing only the most limited explanation of why it designated aliens a suspect class, left significant room for disagreement over this issue. Graham declared aliens a "discrete and insular minority." But what does it mean to be a discrete and insular minority? And why do aliens as a class fit that description? Graham did not clarify. See Toll, 458 U.S. at 40 (Rehnquist, J., dissenting) ("Apart from the abbreviated conclusion that `aliens as a class are a prime example of a discrete and insular minority,' the [Graham] Court did not elaborate on the justification for `heightened judicial solicitude.'") (quoting Graham, 403 U.S. at 372). In Foley, Justice Burger suggested that aliens' "discreteness and insularity" derived from their inability to vote, 435 U.S. at 294, and Justice Rehnquist proposed the same theory in his Toll dissent. 458 U.S. at 40 ("One could infer that rigorous judicial scrutiny [of alienage classifications] normally was necessary because aliens were barred from asserting their interests in the governmental body responsible for imposing burdens upon them."). Other opinions suggest aliens are discrete and insular due to the history of invidious discrimination against them. See Flores de Otero, 426 U.S. at 603 (canvassing history of "[o]fficial discrimination against lawfully admitted aliens").

Perhaps the best way to read Graham's use of the hoary phrase, "discrete and insular minority," is as a signifier that denotes a group of criteria for determining the proper scrutiny level under the Equal Protection Clause, rather than a single dispositive rationale. Justice Brennan proposed this broader reading in Plyler:

Several formulations might explain our treatment of certain classifications as "suspect." Some classifications are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal. Finally, certain groups, indeed largely the same groups, have historically been "relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." The experience of our Nation has shown that prejudice may manifest itself in the treatment of some groups. Our response to that experience is reflected in the Equal Protection Clause of the Fourteenth Amendment. Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of "class or caste" treatment that the Fourteenth Amendment was designed to abolish.

457 U.S. at 217 n. 14. This language touches all the familiar premises for strict scrutiny under the Equal Protection clause. Such scrutiny is warranted if a legal classification (1) turns on a characteristic that is generally irrelevant to policy goals and has been the subject of irrational discrimination in the past; (2) unfairly differentiates people based on an immutable characteristic or a characteristic "beyond their control;" or (3) disfavors a politically powerless class. The Court's Equal Protection-alienage jurisprudence builds on all three of these criteria.

See Erwin Chemerinsky, Constitutional Law 672 (3d ed. 2006) ("Several criteria are applied in determining the level of scrutiny [under the Equal Protection Clause]. . . . [T]he Court has emphasized that immutable characteristics like race, national origin, gender, and the marital status of one's parents warrant heightened scrutiny. The notion is that it is unfair to penalize a person for characteristics that the person did not choose and that the individual cannot change. The Court also considers the ability of the group to protect itself through the political process. . . . [Finally,] [t]he history of discrimination against the group is relevant to the Court in determining the relevant level of scrutiny. A related issue is the Court's judgment concerning the likelihood that the classification reflects prejudice as opposed to a permissible government purpose.").

The first scrutiny criterion is the most prevalent. The Supreme Court draws upon history and context to make a preliminary assessment of the legislature's likely motives for classifying people by a particular characteristic, and if that preliminary assessment reveals red flags, the Court applies heightened scrutiny. For example, race is seldom relevant to policy, and our history reveals examples of legislative enactments motivated by irrational racial prejudice, so the Court is suspicious of any law that classifies by race. See, e.g., Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985) ("[R]ace, alienage, or national origin . . . are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others."). Of course, this explanation portrays the Court as putting the cart before the horse by considering the likely rationality of a law before deciding how closely to scrutinize the rationality of the law. But there is no doubt that the Court does, in fact, use this method to choose between scrutiny levels. See id.; Frontiero v. Richardson, 411 U.S. 677, 684-86 (1973) ("[W]hat differentiates sex from such non-suspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society."). Moreover, the Court's heightened scrutiny of alienage classifications appears to derive in part from such a preliminary assessment of their likely irrationality:

By labeling aliens a discrete and insular minority, the Court [concluded] . . . that for most legislative purposes there simply are no meaningful differences between resident aliens and citizens, so that aliens and citizens are persons similarly circumstanced who must be treated alike. At the same time, both common experience and the unhappy history reflected in our cases demonstrate that aliens often have been the victims of irrational discrimination. In combination, these factors — disparate treatment accorded a class of similarly circumstanced persons who historically have been disabled by the prejudice of the majority — [led] the Court to conclude that alienage classifications in themselves supply a reason to infer antipathy and therefore demand close judicial scrutiny.

Toll, 458 U.S. at 20-21 (Blackmun, J., concurring).

The State's argument, as the Court construes it, is that alienage classifications that discriminate against only non-LPR aliens do not raise the same reds flags or "inferences of antipathy" because non-LPRs, by virtue of their assumed transience, are not similarly situated to the rest of the population for policy purposes. (State Reply at 5 ("[T]emporary nonimmigrant aliens are not a `suspect class' because they are different from citizens and

LPRs in critical ways, and it is entirely appropriate for states to take account of these differences.").) In other words: whereas courts are understandably suspicious of laws distinguishing citizens from LPRs (because those groups are similarly situated), laws that discriminate only against non-LPR aliens should not generate similar suspicion because those laws turn on a rational distinction.

This was Justice Rehnquist's argument also. Toll, 458 U.S. at 44-45 (Rehnquist, J., dissenting) ("Implicit in [Graham and other] cases is the judgment that because permanent residents are in so many respects situated similarly to citizens, distinctions between them are to be carefully scrutinized. . . . [That] judgment . . . simply does not apply to . . . distin[ctions] between permanent resident aliens and nonimmigrants.").

Somewhat persuasively, this argument seeks to tie the LPR distinction to the criteria for determining scrutiny in a way that the LeClerc and LULAC opinions do not. But the Court is not convinced that the differences between LPRs and nonimmigrants are substantial enough to remove non-LPR classifications from the ambit of judicial suspicion. First, the Supreme Court has already considered and rejected a state law discriminating against a sub-class of aliens characterized by potential transience. In Nyquist, the Court struck down a New York law that discriminated against LPRs who had not yet applied for citizenship and who did not intend to apply for citizenship once they qualified to do so. 432 U.S. at 10. Because an LPR must renounce foreign citizenship to become a U.S. citizen, id. at 5 n. 5, the discrimination reached only those LPRs who refused to declare an intent to sever foreign ties.

The Nyquist law and § 6805(1)(6) implicate transience in different ways — the Nyquist law by excluding aliens who refused to declare an irrevocable commitment to the United States, and § 6805(1)(6) by excluding aliens whom the federal government may still force to leave after a finite period. But the point remains: the affected sub-class of aliens in Nyquist was distinctly more likely to leave the United States than the unaffected remainder of the citizen/LPR population, yet the Supreme Court applied strict scrutiny anyway.

Second, the State's argument addresses only one of the two factors the Supreme Court considers in assessing a law's likely rationality for choice-of-scrutiny purposes. Even if one accepts the premise that nonimmigrants have a higher potential for transience than LPRs and that this fact has policy relevance, no one would argue that nonimmigrant aliens are any less likely to suffer irrational discrimination than their LPR counterparts. Indeed, under the State's reasoning, the opposite is true: because nonimmigrants generally have enjoyed less time to assimilate, they are logically more likely to suffer xenophobic animosity. In other contexts, where a distinguishing characteristic has policy relevance but has also been an axis of irrational discrimination, the Supreme Court has applied other forms of heightened scrutiny. Gender classifications receive intermediate scrutiny because of this mix of possible policy relevance and bad history:

[S]keptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history [of discrimination]. . . . [But] the heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed "inherent differences" are no longer accepted as a ground for race or national origin classifications. Physical differences between men and women, however, are enduring: "The two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both." Ballard v. United States, 329 U.S. 187, 193 (1946).

United States v. Virginia, 518 U.S. 515, 531-33 (1996). Under this framework, intermediate scrutiny would seem the lowest possible standard of review for non-LPR classifications, because while such classifications might, in some circumstances, implicate a relevant difference between people, they also implicate a history in which aliens have been denied rights and opportunities simply because they are aliens. See, e.g., Takahashi, 334 U.S. 410; Yick Wo, 118 U.S. 356.

The terminology of the Supreme Court's gender-equal protection and alienage-equal protection doctrines is difficult to reconcile. In the gender context, the Court applies intermediate scrutiny based on the conclusion that gender is sometimes relevant to policy. Virginia, 518 U.S. at 533. This intermediate standard, applied uniformly to all gender classifications, is meant to separate laws based on antiquated conceptions of gender inequality from laws based on rational policy. Id. In the alienage context, in contrast, the Court does not apply a uniform level of scrutiny, but instead changes its scrutiny depending on the propriety of the legislative premise. States have a legitimate interest in defining their "democratic political institutions," and also in "withholding [their] beneficence from those whose very presence within the United States is the product of their own unlawful conduct," so alienage classifications geared to further those interests receive only rational basis review. Foley, 435 U.S. at 295; Plyler, 457 U.S. at 219. Justice Rehnquist noted this anomaly of the alienage doctrine, albeit to support a different argument (that alienage classifications should not receive any heightened scrutiny). Toll, 458 U.S. at 41 n. 12 (Rehnquist, J., dissenting) ("The Court has recognized that the strength of the State's interest is great when it seeks to exclude aliens from its political processes, but selection of the appropriate level of `scrutiny' traditionally has depended, not on the nature of the State's interest, but on the nature of the burdened class. If the Court has eschewed strict scrutiny in the `political process' cases, it may be because the Court is [] uncomfortable with the categorization of aliens as a suspect class.").
The differences between the Court's gender and alienage doctrines are in the end of little practical import, because under both frameworks the Court differentiates between permissible policy initiatives, on the one hand, and laws that strike too close to antipathy and irrational discrimination, on the other hand. But in the alienage context, the Court uses a doctrine of exceptions instead of intermediate scrutiny to accomplish that differentiation. The State seems to argue that the LPR distinction should create a third categorical exception to the alienage-equal protection doctrine, alongside the Foley and Plyler exceptions. But the foundation of the LPR distinction is too shoddy to support a bright categorical distinction. While an undocumented alien's ipso facto violation of federal law marks a stark distinction from other state residents, a nonimmigrant alien's potential transience is based on probabilities — many nonimmigrants, like the plaintiffs here who have lived in this country for more than ten years and are in the process of applying for permanent residence, stay in the United States longer than many LPRs. The nonimmigrant's potential transience does not carry the patent salience of the Plyler and Foley distinctions.

Of course, one might believe that § 6805(1)(6), rather than extending this unfortunate history, seeks only to further the legitimate purposes the State ascribes to it here — that is, that the law aims to enhance professional discipline and ensure the availability of malpractice remedies, and that the categorical exclusion of non-LPRs is the law's manner of pursuing those objectives. But judicial suspicion is not misplaced. New York law also bars non-LPRs from other desirable private occupations in which transience would not seem to pose the same purported dangers: certified shorthand reporter, massage therapist, land surveyor, and veterinary technician. N.Y. Educ. Law §§ 6711(6),

7206-a(1)(6), 7504(1)(6), 7804(5). And not long ago, New York forthrightly argued before the Supreme Court that a State should be able to deny aliens opportunities simply for the purpose of preserving those opportunities for citizens. Sugarman, 413 U.S. at 643-44 ("[A]ppellants argue that a State constitutionally may confine public employment to citizens. Mr. Justice (then Judge) Cardozo accepted this `special public interest argument' because of the State's concern with `the restriction of the resources of the state to the advancement and profit of the members of the state.'") (quoting People v. Crane, 214 N.Y. 154, 161 (1915)). Whatever one thinks of that government purpose — and as the quotation reveals, major voices have endorsed it in the past — the Supreme Court has declared it constitutionally impermissible. Id. at 644. To apply only rational basis review here would contravene principles of judicial scrutiny by ignoring historical and contextual indications that § 6805(1)(6) in fact seeks to achieve the same impermissible objective by reserving pharmacy jobs for citizens and LPRs. See Flores de Otero, 426 U.S. at 603 ("[Historically] aliens have been restricted from engaging in private enterprises and occupations that are otherwise lawful. . . . It is with respect to this kind of discrimination that the States have had the greatest difficulty in persuading this Court that their interests are substantial and constitutionally permissible, and that the discrimination is necessary for the safeguarding of those interests.").

Before 1982, New York law excluded all aliens from the pharmacy profession, except those aliens who had legally declared an intent to become a citizen. See Act of Apr. 14, 1947, ch. 820, § 6803(1)(h), 1947 N.Y. Laws 2052. The Legislature broadened the exception to encompass all LPRs in response to the Graham line of cases. See Act of Jun. 1, 1982, ch. 133, § 17, 1982 N.Y. Laws 499.

The non-LPR distinction is even less relevant to the other criteria for heightened scrutiny — fairness and political powerlessness. The Court's alienage jurisprudence invokes these criteria in tandem. See Griffiths, 413 U.S. at 722 ("Resident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society. It is appropriate that a State bear a heavy burden when it deprives them of employment opportunities."); Foley, 435 U.S. at 294 ("[T]he Court has treated certain restrictions on alienage with `heightened judicial solicitude,' a treatment deemed necessary since aliens — pending their eligibility for citizenship — have no direct voice in the political processes.") (citation omitted). 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. (Def. Br. at 14.) LeClerc makes a similar suggestion. 419 F.3d at 417 ("[N]onimmigrant aliens — who ordinarily stipulate before entry to this country that they have no intention of abandoning their native citizenship, and who enter with no enforceable claim to establishing permanent residence or ties here — need not be accorded the extraordinary protection of strict scrutiny by virtue of their alien status alone."). 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

The State relies heavily on similar language in Graham, but there the Court referenced the similarities between legal alienage and citizenship in the course of applying strict scrutiny to reject a legislative justification; the Court did not invoke those similarities as a basis for choosing strict scrutiny review. 403 U.S. at 376 ("The `justification of limiting expenses [by excluding a class of persons] is particularly inappropriate and unreasonable when the discriminated class consists of aliens. Aliens like citizens pay taxes and may be called into the armed forces. Unlike the short-term residents in Shapiro [who were citizens], aliens may live within a state for many years, work in the state and contribute to the economic growth of the state.'") (quoting lower court opinion, 321 F. Supp. 250, 253).

equal protection clause. Plyler, 457 U.S. at 215. Perhaps the "constitutional status" argument is that nonimmigrants have not earned the protections of strict scrutiny — that they do not deserve "heightened judicial solicitude" because they have not been here long enough. But the Court's alienage jurisprudence simply does not support that argument. Non-LPR classifications, like citizenship classifications, deny benefits and opportunities to legal residents with no political voice who contribute to society. To the extent concerns for fairness and political powerlessness contributed to the application of heightened scrutiny in the Graham line of cases, those concerns also favor heightened scrutiny here.

* * *

Based on the foregoing considerations, the Court concludes that § 6805(1)(6), by denying non-LPR aliens the opportunity to obtain a pharmacy license, triggers strict or intermediate scrutiny. The Court need not choose between these levels of heightened scrutiny because § 6805(1)(6) fails them both. Under intermediate scrutiny, the government bears the burden of proving that the classification serves "important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." Nguyen v. Immigration and Naturalization Service, 533 U.S. 53, 60-61 (2001) (quoting Virginia, 518 U.S. at 533). Here, the State has argued only that § 6805(1)(6) meets the rational basis test and has not put forth any evidence to show that the law withstands more exacting review; there is no evidence, for example, that transience amongst New York pharmacists threatens public health or that nonimmigrant pharmacists, as a class, are in fact considerably more transient than LPR and citizen pharmacists. And even if the Court were to forgive this failure of proof, the State's justification for the law demonstrates by itself that its "discriminatory means" are not "substantially related" to its governmental objectives. The State says it seeks to protect "the health and safety of [New York] residents by monitoring, regulating and enforcing compliance with professional disciplinary rules and ensuring the availability of malpractice actions against pharmacists where appropriate." (Def. Mem. at 18.) Section 6805(1)(6)'s exclusion of non-LPRs is a legitimate means of pursuing these goals, according to the State, because non-LPRs are more likely to leave the country, and perhaps less likely to have substantial assets in the country, and consumers may therefore have more difficulty recovering against non-LPR pharmacists for malpractice and the State may have more difficulty enforcing disciplinary measures against them. (Id. at 19.) But the fit between these given legislative purposes and the law's discriminatory device is woefully inexact. The State purports to ameliorate the dangers posed by transient or judgment-proof pharmacists through a provision aimed at only a tiny subclass of pharmacists, instead of imposing generally applicable insurance or similar malpractice-related requirements upon the entire profession. As a consequence, the law does nothing to reduce the dangers of transience amongst citizen and LPR pharmacists, while at the same time excluding longtime nonimmigrant residents, many of whom will become LPRs when the federal government processes their pending green card applications. The question is not close; under any form of heightened scrutiny, § 6805(1)(6) fails. See LeClerc, 419 F.3d at 430 (Stewart, J., dissenting) (arguing that non-LPR alienage classification failed rational basis test); Kirk, 562 F. Supp. 2d at 411-12 (same); see also Flores de Otero, 426 U.S. at 606 ("[T]he asserted purpose of [excluding aliens from civil engineering] to assure responsibility for negligent workmanship sweeps

too broadly. United States citizenship is not a guarantee that a civil engineer will continue to reside in Puerto Rico or even in the United States, and it bears no particular or rational relationship to skill, competence, or financial responsibility. Puerto Rico has available to it other ample tools to achieve the goal of an engineer's financial responsibility without indiscriminately prohibiting the private practice of civil engineering by a class of otherwise qualified professionals.").

B. The LPR Distinction and the Federal Immigration Power

"[States] can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens within the United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with th[e] constitutionally derived federal power to regulate immigration, and have accordingly been held invalid." Toll, 458 U.S. at 11 (quoting Takahashi, 334 U.S. at 419); DeCanas v. Bica, 424 U.S. 351, 358 n. 6 (1976) (same). This rule, established in Takahashi and relied upon in Graham and Flores de Otero, flows from two constitutional provisions: the Naturalization Clause, which gives Congress power to "establish an uniform Rule of Naturalization," Art. I, § 8, cl. 4; and the Supremacy Clause. Art. VI, cl. 2. See Flores de Otero, 426 U.S. at 602.

In DeCanas, the Court limited the Takahashi rule somewhat, but not in any way that affects its implications for § 6805(1)(6). DeCanas held that a California law prohibiting employment of illegal aliens was a valid exercise of the state's police power and did not encroach on the federal immigration power. 424 U.S. at 352-53 ("[T]he Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted. . . . [S]tanding alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration. . . ."). But in carving out this exception for a state law that discriminated against only illegal aliens, the Court reinforced the Takahashi rule's applicability to state laws that discriminate against legal aliens: "State regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress." Id. at 358 n. 6. And in Toll, the Court applied the Takahashi rule to hold unconstitutional a non-LPR alienage classification quite similar to § 6805(1)(6): a University of Maryland policy that allowed only citizens and "aliens lawfully admitted for permanent residence" to qualify for preferential "in-state" tuition status. 458 U.S. at 3, 17 ("We cannot conclude that Congress ever contemplated that a State . . . might impose discriminatory tuition charges and fees solely on account of [a person's] federal immigration classification.").

Under these principles, Section 6805(1)(6) is even more clearly unconstitutional than under the Equal Protection Clause. Indeed, in light of Toll, the LPR distinction is not a distinction at all.

The State makes two arguments. First, it contends that the following provision of federal immigration law shows that § 6805(1)(6)'s discrimination is congressionally sanctioned: "If an occupation requires a state or local license for an individual to fully perform the duties of the occupation, an alien . . . seeking [a temporary visa to work] in that occupation must have that license prior to approval of the petition." 8 C.F.R. § 214.2(h)(4)(v)(A). The State interprets this licensure requirement to mean that it may deny nonimmigrants the opportunity to practice pharmacy or other occupations based on their immigration status, because the provision leaves professional licensing decisions to the states. Under this reading, the federal laws creating H-1B and TN visa status are advisory: they indicate that nonimmigrants should be admitted to the country to practice specialty occupations, but they also allow the states to decide whether nonimmigrants (as a class, not as individuals) should be permitted to practice specialty occupations. And if every state decided, like New York, that nonimmigrants should not enjoy this privilege, then they would write H-1B and TN status out of the United States Code. 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. See Watson v. Maryland, 218 U.S. 173, 176 (1910) ("[T]he police power of the states extends to the regulation of certain trades and callings, particularly those which closely concern the public health. . . . [T]he power of the state may be exerted to see that only properly qualified persons shall undertake [the] responsible and difficult duties [of such professions].").

Second, the State relies on a passage of dicta from Toll to distinguish that case's holding:

[W]hen Congress has done nothing more than permit a class of aliens to enter the country temporarily, the proper application of the principle [that states may not impose `additional burdens not contemplated by Congress'] is likely to be a matter of dispute. But the instant case does not present such a situation. . . .

458 U.S. at 12-13. The plaintiffs in Toll had nonimmigrant G-4 visas, which cover the employees of certain international organizations (such as the World Bank) and their families. Id. at 4; 8 U.S.C. § 1101(a)(15)(G)(iv). The Court determined that G-4

nonimmigrants were not "temporary" aliens because federal immigration law did not require them to demonstrate "an intent not to abandon a foreign residence." Toll, 458 U.S. at 6 n. 8. The State argues that the above-quoted passage carves out a caveat to the Takahashi rule that governs this case. LeClerc made the same argument. 419 F.3d at 424.

There are two problems with this argument. First, most of the plaintiffs here are in all relevant respects similarly situated to the Toll plaintiffs. H-1B aliens, like G-4 aliens, need not demonstrate an intent not to abandon a foreign residence. See LeClerc, 419 F.3d at 411 n. 4. And G-4 visa holders, like H-1B visa holders, are admitted to the country for a finite period of time: G-4 holders for the duration of their employment at a qualifying international organization, see 8 C.F.R. § 214.2(g)(1), and H-1B holders for an initial term of three years. 8 C.F.R. §§ 214.2(h)(9)(iii)(A)(1). Thus, Toll's dicta does not apply to the twenty-two H-1B plaintiffs in this case.

More to the point, the passage of dicta from Toll is quite a small platform for the State's case. The passage does not actually say that states may impose auxiliary burdens on nonimmigrant aliens as a class. And here, the federal government has in fact done something "more than permit [plaintiffs] to enter the country temporarily" — it has permitted them to enter the country temporarily for the purpose of practicing specialty occupations like pharmacy. By declaring that plaintiffs may not practice pharmacy, New York law unmistakably imposes "additional burdens not contemplated by Congress" and thus unconstitutionally encroaches upon the federal immigration power. DeCanas, 424 U.S. at 358 n. 6.

A final point. The State argues that the four TN plaintiffs cannot argue preemption because the NAFTA Implementation Act provides that only the United States may bring actions attacking state laws that are inconsistent with NAFTA. See 19 U.S.C. § 3312(b)(2). The Court finds it unnecessary to resolve this issue for two reasons. First, 6805(1)(6) is unconstitutional as applied to the TN plaintiffs because it violates their Equal Protection rights, so it does not matter whether they may assert a preemption challenge. Second, the argument that § 6805(1)(6) encroaches upon the federal immigration power does not actually depend on a conflict between state and federal law. The doctrine is that "state laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with th[e] constitutionally derived federal power to regulate immigration. . . ." Toll, 458 U.S. at 11 (quoting Takahashi, 334 U.S. at 419) (emphasis supplied). That § 6805(1)(6) conflicts with or obstructs federal law is a separate argument that the Court does not address given its acceptance of plaintiffs' Equal Protection and Takahashi arguments.

CONCLUSION

For the foregoing reasons, plaintiffs' motions for summary judgment [37, 41] are granted in substantial part and defendants' motion [33] is denied in substantial part. The individual defendants are permanently enjoined from applying or enforcing § 6805(1)(6) against plaintiffs. Plaintiffs' claims against the agencies are dismissed, as are their claims for monetary damages.

SO ORDERED.