Great discussion about state and federal law and preemption and this complex and often conflicting and unresolved area of law by Dale J. Atkinson JD on NABP

Legal Briefs: Court Documents License for Undocumented Licensee

April 16, 2014 5:00 PM Topics: Federal regulations

By Dale J. Atkinson, JD 
Originally published in the April 2014 NABP Newsletter
The interaction and potential conflict between federal and state law can present interesting issues for regulatory boards that, at times, may be difficult to reconcile. Generally, states have the right to regulate the professions under the police powers granted via the United States Constitution. But, under certain circumstances, federal law can preempt state law. Federal preemption is limited to specified circumstances involving interstate commerce and where federal governmental control is necessary to promote the orderly relationships between and among the states. These interstate commerce issues have historically been the subject of significant litigation. At times, the state and federal laws remain at odds leaving the enforcement of such conflicting legislation in limbo.
The potential for conflicting laws is particularly significant in the area of immigration. On many occasions, licensure eligibility of persons who may meet the qualifications contained in the practice act is subject to further scrutiny based upon additional federal laws. For example, one question subject to differing answers among regulatory boards of the various professions and of the various states is whether an applicant for licensure must possess and provide a valid Social Security number. When denying an application for licensure, the board must substantiate the basis for such denial. Another example subject to significant scrutiny is whether an undocumented immigrant is eligible for licensure.
The full article, which reviews a case involving an applicant to the State Bar of California, is available in the April 2014 NABP Newsletter (PDF; pages 76-78).