Could Maine's LD 340 constitutionally bar federally certified foreign workers from working in timber harvesting on Maine state lands?
Subject
Whether LD 340, a Maine bill that would have prohibited federally certified foreign workers from working in the timber industry on Maine public lands, was constitutional under federal preemption and Equal Protection doctrines.
Currency note
This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Plain-English summary
Senator Troy Jackson sponsored LD 340 in the 125th Maine Legislature, an Act Regarding Timber Harvesting on State Land. The bill would have prohibited foreign workers (admitted under federal H-2A or H-2B programs after federal certification) from working in timber harvesting on Maine public lands. Representative John Martin asked Attorney General William Schneider for an opinion on the bill's constitutionality.
The AG re-reviewed LD 340 (he had previously commented at a committee hearing) and concluded it was unconstitutional on two grounds:
Federal preemption. The federal foreign worker certification program (20 CFR § 655.200(b)) requires the federal government to certify that "(1) the employer has not offered foreign workers higher wages or better working conditions (or less restrictions) than that offered to U.S. workers, and (2) U.S. workers are not available for the employer's job opportunities." Once a federal certification issues, the worker is lawfully authorized to work. A state law banning federally certified workers from a particular industry on state lands collides with the federal scheme.
Equal Protection. While courts have allowed states to ban aliens from certain occupations (police officers being the classic example), there's no basis to ban federally certified workers from timber harvesting, especially where the certification's premise is that U.S. workers are not available. The discrimination lacks a permissible basis.
The AG's response was a brief letter restating views he'd already given to the Joint Standing Committee on Labor, Commerce, Research and Economic Development. The opinion is short and direct, signaling that LD 340 was not legally salvageable in its proposed form.
Common questions
Q: Did LD 340 become law?
The AG opinion addressed the bill while it was pending. The legislative outcome would need to be checked separately in Maine's legislative records. The AG's clear unconstitutionality determination would have made enactment risky.
Q: What's the federal H-2 certification?
A federal program (Department of Labor and USCIS) that allows U.S. employers to hire foreign workers for temporary jobs (H-2A for agricultural, H-2B for non-agricultural seasonal work). Certification requires evidence that U.S. workers aren't available and that hiring foreign workers won't depress wages or conditions for U.S. workers.
Q: Why can states ban aliens from being police officers but not timber workers?
The Supreme Court has approved certain alienage classifications under the "political function" exception (e.g., Foley v. Connelie, 1978 (police), Cabell v. Chavez-Salido, 1982 (probation officers)). The exception is narrow: it covers occupations that involve exercising political authority. Timber harvesting on state lands isn't a political function, so the exception doesn't apply, and the strict scrutiny that ordinarily applies to alienage classifications would defeat LD 340.
Background and statutory framework
The U.S. Constitution's Supremacy Clause makes federal law supreme over conflicting state law. Federal immigration and labor authority is broad, and federal regulations under 8 U.S.C. § 1188 (H-2A) and 8 U.S.C. § 1101(a)(15)(H)(ii)(b) (H-2B), implemented at 20 CFR Part 655, govern when a foreign worker may be certified to work in the United States.
Equal Protection analysis under the Fourteenth Amendment treats alienage as a "suspect classification" subject to strict scrutiny, except where state action falls within the narrow "political function" exception. Under strict scrutiny, the state must show a compelling interest and narrow tailoring; a state's preference for U.S. workers (where the federal government has determined U.S. workers are unavailable) is unlikely to satisfy that test.
The Maine AG opinion is consistent with the broader doctrine. Other states' similar bills around 2010-2012 (in the wake of the recession, when state legislatures sought to favor U.S. workers) faced similar constitutional skepticism.
Citations
- 20 CFR § 655.200(b) (foreign worker certification)
- U.S. Const. amend. XIV (Equal Protection)
- U.S. Const. art. VI, cl. 2 (Supremacy Clause)
- LD 340, 125th Maine Leg. (proposed 2011)
- Foley v. Connelie, 435 U.S. 291 (1978) (police officer political-function exception, by analogy)
- Cabell v. Chavez-Salido, 454 U.S. 432 (1982) (probation officer political-function exception)
Source
- Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
- Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2011/ag_20110415.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
MAINE STATE LEGISLATURE
The following document is provided by the
LAW AND LEGISLATIVE DIGITAL LIBRARY
at the Maine State Law and Legislative Reference Library
http://legislature.maine.gov/lawlib
Reproduced from scanned originals with text recognition applied
(searchable text may contain some errors and/or omissions)
WILLIAM J. SCHNEIDER REGIONAL OFFICES:
A ITORNEY GENERAL 84 HARLOW ST., 2ND FWOR
BANGOR, MAINE 04401
TEL: (207) 941-3070
FAX: (207) 941-3075
TEL: (207) 626-8800 415 CONGRESS ST., STE. 301
TTY: 1-888-577-6690 Portland, Maine 04101
TEL: (207) 822-0260
FAX: (207) 822-0259
14 ACCESS HIGHWAY, STE 1
STATE OF MAINE CARIBOU, MAINE 04736
OFFICE OF THE ATTORNEY GENERAL TEL: (207) 496-3792
FAX: (207)496-3291
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006
April 15, 2011
Representative John Martin
2 State House Station
Augusta, ME 04333
Dear Representative Martin:
This letter is in response to your inquiry about my office's recent comments to the Joint
Standing Committee on Labor, Commerce, Research and Economic Development about Senator
Jackson's bill, LD 340, An Act Regarding Timber Harvesting on State Land.
At your request, our office re-reviewed the language of LD 340 and we continue to believe that it
is unconstitutional as it presents preemption and equal protection issues under the United
States Constitution. As previously conveyed to the committee:
LD 340 prohibits foreign workers who have been federally certified to work in the timber
industry from working on Maine public lands. The federal program generally
contemplates that foreign workers can only be certified if "(1) the employer has not
offered foreign workers higher wages or better working conditions (or less restrictions)
than that offered to U.S. workers, and (2) U.S. workers are not available for the
employer's job opportunities." 20 CFR 655.2oo(b). There is a rather elaborate process
for an employer to obtain this certification. The federal certification presents both a
preemption and equal protection problems for this bill. While the courts have allowed
states to ban aliens from certain occupations - such as police officers - there seems to be
no basis upon which to ban federally certified workers, particularly where the
certification is based upon the unavailability of U.S. workers.
Please let me know if you have any questions.
Sincerely,
William J. Schneider
Attorney General
cc: Senator Troy Jackson