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 who had been federally certified to work in the timber industry from working 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 certification the opinion refers to?

The opinion relies on 20 CFR § 655.200(b), the federal rule governing certification of foreign workers for jobs like timber harvesting. Under it, a worker can be certified only if the employer has not offered foreign workers better wages or conditions than U.S. workers and if U.S. workers are not available for the job. The AG noted there is "a rather elaborate process" for an employer to obtain that certification.

Q: Why can states ban aliens from being police officers but not timber workers?

The AG's letter used police officers as the example of an occupation states have been allowed to close to aliens, then said there "seems to be no basis" to similarly bar federally certified timber workers, "particularly where the certification is based upon the unavailability of U.S. workers." The opinion did not cite specific cases. As a matter of general equal-protection doctrine, the narrow exception that lets states reserve some jobs (like sworn law enforcement) for citizens covers occupations that involve exercising governmental or political authority, which timber harvesting on state land does not.

Background and statutory framework

The U.S. Constitution's Supremacy Clause makes federal law supreme over conflicting state law. The federal foreign-worker certification rule the opinion relies on, 20 CFR § 655.200(b), allows certification only where the employer has not offered foreign workers better terms than U.S. workers and where U.S. workers are not available for the job. The AG's preemption concern is that a state law barring already-certified workers from a particular industry on state land collides with that federal scheme.

The opinion also flags an equal-protection problem. Courts have allowed states to close some occupations (police officers, in the AG's example) to aliens, but the AG saw no basis to bar federally certified timber workers, particularly where the certification rests on a federal finding that U.S. workers were unavailable.

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)

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