Does federal law let a military spouse keep using an out-of-state professional license in South Carolina without meeting state licensing requirements?

Official title

Opinion addressing how to reconcile the requirements of Section 19 of the Veterans Auto and Education Improvement Act of 2022 (VAEIA) with South Carolina law governing professional and occupational licensing.

Requester

Requested by Susan Boone, Esq., General Counsel and Deputy Director, South Carolina Department of Labor, Licensing and Regulation.

Plain-English summary

The South Carolina Department of Labor, Licensing and Regulation (LLR) asked how to square a federal law with state licensing rules. Section 19 of the Veterans Auto and Education Improvement Act of 2022 (VAEIA), codified at 50 U.S.C. § 4025a, says that when a servicemember or a servicemember's spouse holds a "covered license" and relocates under military orders, that license "shall be considered valid at a similar scope of practice" in the new state for the duration of the orders, provided the holder gives a copy of the orders, stays in good standing with the issuing authority, and submits to the new state's standards of practice and discipline. A "covered license" is one in good standing, actively used in the two years before the move, and not a law license.

LLR's problem: military licensees were relocating to South Carolina and asserting they could practice without meeting state requirements, but LLR believed it could not issue a license to someone who did not qualify under state law, and could not skip the criminal background checks that several practice acts mandate. LLR proposed giving qualifying military licensees an "Acknowledgement form" recognizing their out-of-state license during their orders, after which they would need a South Carolina license. It asked whether that proposal was permitted.

The Attorney General declined to formally approve or reject the proposal, because the core issue is federal law and "this Office cannot render official opinions on matters of federal law." It pointed LLR to the U.S. Department of Justice Civil Rights Division, which enforces the Servicemembers Civil Relief Act, including § 4025a.

What the office did do is map the conflict. It walked through Supremacy Clause doctrine: where federal and state law conflict, state law yields, but courts start from the assumption that historic state powers are not superseded absent a clear statement of congressional intent. It then identified specific conflicts. S.C. Code § 40-1-630 lets boards issue temporary licenses to military spouses but only after the applicant shows compliance with all state-law requirements, including a SLED and FBI fingerprint background check, and caps the temporary license at one non-renewable year. Section 25-1-170 similarly requires a background check and excludes educators and the practice of law. By contrast, § 4025a requires recognition at a similar scope of practice, for the duration of the orders, with no reference to state-law requirements, and excludes only law licenses (so it would reach educators). The AG concluded that where no interstate licensure compact applies, the plain language of § 4025a(a) shows an intent to displace conflicting state licensing requirements, and it cited a Texas federal case, Portee v. Morath, where a court enjoined enforcement of a state requirement that conflicted with § 4025a.

The bottom line the AG offered: the conflicting federal and state directives will inevitably lead to a violation of one or the other, legislation would be necessary to remove the conflicts, and in the meantime South Carolina's statutes are presumed valid and remain in force until a court rules otherwise.

What this means for you

LLR and South Carolina licensing boards: The AG did not bless or reject your Acknowledgement-form proposal, because the controlling question is federal and outside the office's opinion authority. It identified concrete points of conflict, including the fingerprint background check in § 40-1-630(B)(1)(d)(i), the one-year non-renewable cap, and the educator exclusion in § 25-1-170, that likely cannot stand against § 4025a where no compact applies. It directed compliance questions to the DOJ Civil Rights Division.

Military servicemembers and spouses: The opinion supports the view that a covered out-of-state license should be recognized at a similar scope of practice for the duration of your orders, even though state law would normally require more. But the AG stopped short of a definitive federal ruling and noted state statutes remain in force until a court says otherwise.

State legislators: The AG stated plainly that legislation would be necessary to remove the conflicts between §§ 40-1-630 and 25-1-170 and the federal statute.

Common questions

Did the Attorney General say military spouses can practice in South Carolina on their old license?
Not as a definitive ruling. The AG declined to opine on the federal-law question, but its analysis indicates that where state requirements conflict with § 4025a and no interstate compact applies, the federal recognition requirement would likely prevail.

Why wouldn't the AG just answer the question?
Because the controlling issue is the meaning and effect of a federal statute, and the office's longstanding position is that it "cannot render official opinions on matters of federal law." It referred LLR to the DOJ Civil Rights Division, which enforces the statute.

What South Carolina requirements conflict with the federal law?
The AG flagged the fingerprint-based SLED and FBI background checks required by § 40-1-630, the one-year non-renewable cap on temporary licenses, and § 25-1-170's background-check requirement and its exclusion of educators. The federal statute requires recognition without those conditions and excludes only law licenses.

Does this apply if an interstate licensure compact covers the profession?
No. Under § 4025a(b), if the servicemember or spouse can operate through an interstate licensure compact, the compact's requirements govern instead of Section 19. South Carolina law allows boards to enter such compacts under § 25-1-170(F).

Background and statutory framework

Section 19 of the VAEIA, 50 U.S.C. § 4025a, requires states to treat a "covered license" held by a relocating servicemember or spouse as valid at a similar scope of practice for the duration of the orders, subject to the holder providing the orders, remaining in good standing, and submitting to the new state's standards of practice, discipline, and continuing education. Subsection (b) defers to interstate licensure compacts where they apply, and subsection (c) defines a covered license and excludes only law licenses.

The conflicting state statutes are S.C. Code § 40-1-630, which authorizes temporary licenses for military spouses but conditions them on proof of compliance with all state-law requirements (including the fingerprint background check in § 40-1-630(B)(1)(d)(i)) and limits them to one non-renewable year, and S.C. Code § 25-1-170, which requires a background check, bars applicants under investigation or disciplined elsewhere, and excludes educators and the practice of law. Section 25-1-170(F) allows South Carolina boards to establish reciprocity through interstate compacts.

The analysis runs through the Supremacy Clause, U.S. Const., art VI, cl. 2. The AG drew its preemption framework from South Carolina Supreme Court decisions including Adams v. McMaster, 432 S.C. 225, 851 S.E.2d 703 (2020), Edwards v. State, 383 S.C. 82, 678 S.E.2d 412 (2009), and City of Cayce v. Norfolk Southern Railway Co., 391 S.C. 395, 706 S.E.2d 6 (2011), along with U.S. Supreme Court authority such as Gregory v. Ashcroft, 501 U.S. 452 (1991), and Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (1992), which require a clear statement of congressional intent before federal law displaces historic state powers. The one on-point case the office found was Portee v. Morath, No. 1:23-CV-551-RP, 2023 WL 8040763 (W.D. Tex. Nov. 20, 2023), where a federal court enjoined enforcement of a Texas requirement that conflicted with § 4025a.

Citations

• 50 U.S.C. § 4025a (VAEIA Section 19; recognition of covered licenses for relocating servicemembers and spouses)
• S.C. Code § 40-1-630, including § 40-1-630(A) and § 40-1-630(B)(1)(d)(i) (temporary military-spouse licenses; state-law compliance and fingerprint background check)
• S.C. Code § 25-1-170, including § 25-1-170(C) and § 25-1-170(F) (continued practice for relocated military spouses; reciprocity compacts)
• U.S. Const., art VI, cl. 2 (Supremacy Clause)
• Adams v. McMaster, 432 S.C. 225, 851 S.E.2d 703 (2020)
• Edwards v. State, 383 S.C. 82, 678 S.E.2d 412 (2009)
• Gregory v. Ashcroft, 501 U.S. 452 (1991)
• Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (1992)
• City of Cayce v. Norfolk Southern Railway Co., 391 S.C. 395, 706 S.E.2d 6 (2011)
• Portee v. Morath, No. 1:23-CV-551-RP, 2023 WL 8040763 (W.D. Tex. Nov. 20, 2023)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-how-to-reconcile-the-requirements-of-section-19-of-the-veterans-auto-and-education-improvement-act-of-2022-vaeia-with-south-carolina-law-governing-professional-and-occupational-licensing/
• Original PDF: https://www.scag.gov/media/rogaqzvv/03539783.pdf

Original opinion text

0m

ilF

*W

S*

w
Ng

Alan Wilson
Attorney General

March 25, 2024

Susan M. Boone, Esq.

General Counsel and Deputy Director

S.C. Department of Labor, Licensing, and Regulation
Post Office Box 11329
Columbia, SC 29211-1329

Dear Ms. Boone:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter

raises concerns about how to reconcile the requirements of Section 19 of the Veterans Auto and
Education Improvement Act of 2022 (VAEIA) with South Carolina law governing professional
and occupational licensing.
In addition to programs and benefits for service members, veterans, and

their families, the VAEIA included provisions that require states to recognize
professional licenses of military servicemembers and their spouses (“military
licensees”) when they relocate to another state pursuant to military orders.

Specifically, section 19 of the Act provides:
(a) In general.—In any case in which a servicemember or the spouse
of a servicemember has a covered license and such servicemember
or spouse relocates his or her residency because of military orders

for military service to a location that is not in the jurisdiction of the
licensing authority that issued the covered license, such covered

license shall be considered valid at a similar scope of practice and
in the discipline applied for in the jurisdiction of such new residency
for the duration of such military orders if such servicemember or
spouse—

C. Dennis Building

-

1’osr Oitice Box ; 1549

o

COLV.MEJA.se 292 11-1549

TJiLHP; ;O>3£ iJU.-.-73-:-3970

, .YCSLMn E 593- 253-621B

Susan M. Boone
Page 2

March 25, 2024

(1) provides a copy of such military orders to the licensing
authority in the jurisdiction in which the new residency is
located;
(2) remains in good standing with—
(A) the licensing authority that issued the covered

license; and
(B) every other licensing authority that has issued to
the servicemember or the spouse of a servicemember

a license valid at a similar scope of practice and in
the discipline applied in the jurisdiction of such

licensing authority;
(3) submits to the authority of the licensing authority in the
new jurisdiction for the purposes of standards of practice,

discipline, and fulfillment of any continuing education
requirements.

(b) Interstate licensure compacts. -If a servicemember or spouse of
a servicemember is licensed and able to operate in multiple

jurisdictions through an interstate licensure compact, with respect to
services provided in the jurisdiction of the interstate licensure
compact by a licensee covered by such compact, the servicemember
or spouse of a servicemember shall be subject to the requirements

of the compact or the applicable provisions of law of the applicable
State and not this section.

(c) Covered license defined. In this section, the term “covered
license” means a professional license or certificate—
(1) that is in good standing with the licensing authority that

issued such professional license or certificate;
(2) that the servicemember or spouse of a servicemember has
actively used during the two years immediately preceding
the relocation described in subsection (a); and
(3) that is not a license to practice law.

VAEIA, § 19, 136 Stat, at 6137-38 (codified at 50 U.S.C. § 4025a).

Susan M. Boone
Page 3
March 25, 2024

Recently, LLR has received inquiries from military licensees who are in the
process of relocating to South Carolina and desire to work in a licensed profession
or occupation after relocating. They, however, do not currently qualify, or do not
intend to meet the qualifications, for a South Carolina license either under the

requirements set forth in the various practice acts or under South Carolina Code
sections 40-1-630 or 25-1-170. Nevertheless, they assert that section 19 of the
VAEIA allows them to practice their profession in South Carolina (and in all
states). Because they do not qualify for licensure under South Carolina law, LLR

believes that it is prohibited from issuing them a South Carolina license. LLR also
believes that it is prohibited from requiring criminal background checks, which are

mandated by several of the practice acts. Section 19 of the VAEIA, however, still
dictates that LLR consider the “covered license” valid at a similar scope of practice
and in the discipline applied for, so long as the requirements of section 19 are
satisfied.

In LLR’s research regarding the potential for conflict between federal and
state law, it has learned that states around the country are addressing the issue

differently, depending in large part on the current status of the state’s own law. The
Council of State Governments (CSG) has raised a number of questions regarding

the VAEIA, including whether it unlawfully curtails states’ authority to regulate
professional and occupational licensure, a function that has traditionally been left
to the states. . . .

Given the uncertainty surrounding the VAEIA and its impact on state
licensing laws, in order to comply with federal law and South Carolina law, LLR

proposes to provide military licensees who meet section 705 A 1 9’s requirements
with an Acknowledgement form reflecting that the military licensee’s license is

valid in the issuing jurisdiction. While under military orders, the military licensee
would not be subject to penalties for unlicensed practice in South Carolina, but
would be subject to discipline, standards of practice, and fulfillment of continuing
education requirements required by state law, as mandated by section 705 A 19.
When a military licensee’s orders expire, the licensee would be required to obtain
a South Carolina license to continue working in South Carolina in their licensed
profession or occupation.

With the foregoing in mind, LLR requests an opinion on whether the
proposal, as outlined, would be permitted. If the proposal would not be permitted,

LLR would ask for guidance on how to reconcile the requirements of section 19 of
the VAEIA and South Carolina licensing law.

Susan M. Boone
Page 4

March 25, 2024

Law/Analysis

The resolution of a conflict between federal law and state law turns on application of the

Supremacy Clause of the United States Constitution. See U.S. Const., art VI, cl. 2. This Office
has previously opined on the circumstances where federal law is found to displace state law.

Although the Tenth Amendment to the United States Constitution states that “[t]he
powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people,” see Gregory

v. Ashcroft, 501 U.S. 452 (1991), decisions of the United States Supreme Court
establish that where federal and state law conflict, state law must yield pursuant to
the Supremacy Clause. This principle is captured in Article VI of the Constitution,
which reads: “This Constitution, and the Laws of the United States ... shall be the
supreme Law of the Land ..., any Thing in the ... Laws of any State to the Contrary
notwithstanding.” U.S. Const., art VI, cl. 2. Soon after the creation of our federal

system, the Supreme Court explained that the Supremacy Clause was designed to
ensure that states do not “retard, impede, burden, or in any manner control” the
execution of federal law. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316(1819);
see Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824) (Marshall, C.J.) (“[A]cts

of the State Legislatures ... [[that] interfere with, or are contrary to the laws of
Congress [are to be invalidated because] [i]n every such case, the act of Congress
... is supreme, and the law of State, though enacted in the exercise of powers not
controverted, must yield to it”); see also Printz v. United States, 521 U.S. 898, 913

(1997) (states are duty-bound “to enact, enforce, and interpret state law in such
fashion as not to obstruct the operation of federal law[;] ... all state actions
constituting such obstruction, even legislative Acts, are ipso facto invalid”);

Maryland v. Louisiana, 451 U.S. 725, 746 (1981) [under the Supremacy Clause,
the federal law displaces the state law, and the state law is rendered entirely void
and “without effect”]; City of Cayce v. Norfolk Southern Railway Co., 391 S.C.
395, 706 S.E.2d 6, 8 (201 1) [same].

The Supremacy Clause displaces state law so long as state law affects the
operation of federal law, notwithstanding the fact that the state legislature did not

enact such law expressly to frustrate the federal objective. See Perez v. Campbell,
402 U.S. 637, 651-52(1971).

Preemption occurs when Congress ... expresses a clear intent to
preempt state law, when there is outright or actual conflict between

federal and state law, where compliance with both federal and state
law is in effect physically impossible ... or where the state law stands

Susan M. Boone
Page 5

March 25, 2024

as an obstacle to the accomplishment and execution of the full

objectives of Congress.
Louisiana Public Service v. FCC, 476 U.S. 355, 368-69 (1986).
Op. S.C. Att’v Gen., 201 1 WL 6959373, at 2-3 (December 9, 201 1). The South Carolina Supreme

Court explained, however, that the Supremacy Clause does not act to supersede a State’s power
without clear evidence of Congressional intent to do so.

This Court has recognized that “[fjederal legislation threatening to trench on the
States’ arrangements for conducting their own governments should be treated with

great skepticism, and read in a way that preserves a State's chosen disposition of its
own power, in the absence of the plain statement in the language of the legislation
of Congress’ intent to alter the usual constitutional balance of state and federal
powers.” Edwards v. State, 383 S.C. 82, 92, 678 S.E.2d 412, 417 (2009) (quoting
Nixon v. Mo. Mun. League, 541 U.S. 125, 140, 124 S.Ct. 1555, 158 L.Ed.2d 291
(2004) (citing Gregory v. Ashcroft, 501 U.S. 452, 460-61, 111 S.Ct. 2395, 115
L.Ed.2d 410 (1991))). “This plain statement rule is nothing more than an

acknowledgement that the States retain substantial sovereign powers under our
constitutional scheme, powers with which Congress does not readily interfere.”
Gregory, 501 U.S. at 461, 111 S.Ct. 2395. “Consideration of issues arising under

the Supremacy Clause start[s] with the assumption that the historic police powers

of the States [are] not superseded by ... Federal Act unless that [is] the clear and
manifest purpose of Congress.” Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516,
112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (alteration in original) (quoting Rice v.

Santa Fe Elevator Corp., 33 1 U.S. 218, 230, 67 S.Ct. 1146,91 L.Ed. 1447(1947)).
Accordingly, “[t]he purpose of Congress is the ultimate touchstone of pre-emption

analysis.” Priester, 401 S.C. at 43, 736 S.E.2d at 252 (quoting Cipollone, 505 U.S.
at 516, 112 S.Ct. 2608). “To discern Congress’ intent we examine the explicit
statutory language and the structure and purpose of the statute.” Id. (quoting
Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 1 12 L.Ed.2d

474(1990)).

Adams v. McMaster, 432 S.C. 225, 242-43, 851 S.E.2d 703, 712 (2020). We must then determine
whether an actual conflict exists between the terms of section 19 of the VAEIA, 50 U.S.C. § 4025a,
and the state statutes identified in your letter, S.C. Code §§ 40-1-630 and 25-1-170, and, if so,

whether the federal statute manifests Congressional intent to displace state authority to regulate
licensing.

Section 40-1-630 authorizes boards and commissions to issue temporary licenses for
spouses of active-duty members of the armed services stationed within the state. Subsection(A)

Susan M. Boone
Page 6
March 25, 2024

presents the first conflict with 50 U.S.C. § 4025a where it states, “Nothing in this section should
be construed as requiring a board or commission to grant licensure to the spouse of an active duty
member of the United States Armed Forces absent evidence that all state law requirements for
licensure have been met.” S.C. Code § 40-l-630(A) (Supp. 2023) (emphasis added). The
emphasized language demonstrates the Legislature intended to allow a licensing board to require
that an applicant demonstrate compliance with “state law requirements” before issuing a temporary
license. Id. Subsection (B)(1)(d) then requires an applicant to submit “a fingerprint-based
background check conducted by the State Law Enforcement Division to determine if the applicant

has a criminal history in this State and a fingerprint-based background check conducted by the
Federal Bureau of Investigation to determine if the person has other criminal history.” S.C. Code
§ 40-l-630(B)(l)(d)(i).

However, 50 U.S.C. § 4025a(a) states “[i]n any case ... such covered

license shall be considered valid at a similar scope of practice,” and there is no reference to “state
law requirements” in the state to which the servicemember is relocated. Therefore, as your letter
notes,

the requirement

for fingerprint-based

background

checks

in S.C. Code § 40-1630(B)(l)(d)(i) likely would not be permitted as a condition for issuing a temporary license
thereunder.

Finally, subsection 40-1 -630(C) only authorizes temporary licensure for “one year

from the date of issue” and does not permit its renewal. In contrast, 50 U.S.C. § 4025a(a) requires
recognition “for the duration” of the servicemember’s relocation in the state for military service.
Section 25-1-170 also establishes a process for a spouse of an active-duty member of the
United States Armed Forces who is relocated to and stationed in this State to be “approved to

continue work in that profession or occupation ... for such time as normally allotted with receipt
of a license or certificate from the appropriate board.” S.C. Code § 25-1-1 70(C) (Supp. 2023).
Subsection (B) similarly requires an applicant to “submit to any required criminal or other
background check by an authorized board.” Further, the applicant must not “not been disciplined

by an authorized entity or [be] under investigation ... in relation to a professional license or

certificate.” Id. Section (G) excludes both “the practice of law or the regulation of attorneys” and
“educators” from those professional licenses that may be approved according to the terms of this
statute. 50 U.S.C. § 4025a(c)(3) only excludes “license[s] to practice law” and therefore would

require recognition of licenses for “educators.”
A court may well find Congressional intent to displace state law in 50 U.S.C. § 4025a(b).
When reciprocity is established, 50 U.S.C. § 4025 a(b) recognizes an “interstate licensure
compact,” and requires the servicemember or spouse to follow the compact’s requirements, rather

than section 19 of the VAEIA. Our state licensing statutes do, in fact, allow licensing boards to
enter into such interstate licensure compacts. See S.C. Code § 25-1-1 70(F) (“A board, commission,
or agency in this State may establish reciprocity with other states for military spouse professional
licensing and certification.”).

However, where such compacts are not established, the plain

language of 50 U.S.C. § 4025a(a) demonstrates legislative intent to displace state licensing
requirements in the state to which the servicemember and spouse relocate. See 50 U.S.C. §

Susan M. Boone

Page 7

March 25, 2024

4025a(a) (“[S]uch covered license shall be considered valid at a similar scope of practice and in

the discipline applied for in the jurisdiction of such new residency. . .”) (emphasis added).
This Office is not aware of any court that has explicitly analyzed whether section 1 9 of the
VAEIA displaces state licensing law. We have located one case, Portee v. Morath, No. 1:23-CV-

551-RP, 2023 WL 8040763 (W.D. Tex. Nov. 20, 2023), wherein the District Court permanently
enjoined enforcement of a state statute whose terms conflicted with 50 U.S.C. § 4025a.

The

Commissioner of Education and the Texas Education Agency denied an application filed by
Portee, a spouse of an active-duty member who relocated to the state in response to military orders,

which sought recognition of her out-of-state school counseling license. Texas’ statute required
“two academic years of full-time, wage-earning experience in a public or private school in the
licensed position” to issue a Texas education certification based on an out-of-state license. Id. at
*2. While Portee had been employed in the licensed position, her application “failed to verify”
her experience satisfied the two-academic-year requirement. Id. The Court did not directly address

conflict preemption because Defendants argued that Texas’ two-academic-year work requirement
was consistent with section 19 of the VAEIA.

[B]ecause their proffered interpretation of Section 4025a(c)(2) is compatible with

Texas's own two-year work requirement for out-of-state licensees, Defendants also
argue there is no conflict preemption between the SCRA and Texas law. (Id. at 9)
(arguing that “Texas law clearly requires an individual with a non-Texas license to
verify two years of experience to receive an exemption from an assessment exam,

just as the SCRA requires two years of experience for a license to be deemed
‘covered’”).

Id. The Court ruled that the Defendant’s interpretation of section 4025a was incorrect, and that
denying Portee’s application because it did not meet Texas’ requirement of two-academic-years

of employment was a violation thereof. Id. at *6.

Again, although the Court did not directly

analyze the issue of conflict preemption, permanently enjoining enforcement of the inconsistent

terms in the state statue, with respect to Portee’s application, impliedly supports a finding of
conflict preemption. Id. at *8.
Conclusion

As discussed more fully above, the conflicting directives in the federal and state statutes
will inevitably lead to a violation of one or the other. The proposal in your letter appears to comply
with section 1 9 of the VAEIA as described, but “this Office cannot render official opinions on
matters of federal law...” Op. S.C. Att’y Gen., 1974 WL 27804 (June 5, 1974).

The U.S.

Department of Justice, Civil Rights Division has been delegated enforcement authority for the
Servicemembers Civil Relief Act, including 50 U.S.C. § 4025a, and can advise on compliance
issues.

However, a proposal which complies with 50 U.S.C. § 4025a will likely conflict with

Susan M. Boone
Page 8

March 25, 2024

provisions in S.C. Code §§ 40-1-630 and 25-1-170 in some circumstances, such as when a criminal

background check is required.

Legislation would be necessary to remove those conflicts. Of

course, our state statutes are presumed valid and remain in force until a court rules otherwise.

Sincerely,

Matthew Houck
Assistant Attorney General
REVIEWED AND APPROVED BY:

I
Robert D. Cook

Solicitor General