State and Local Legislation Bulletin
Sharma Hammond, Esq., Editor · Issue 7, October 2007

In this Issue:
Behind the Headlines
New Bills
Local Legislation
Other Bills to Watch Encouraging Illegal Immigration
IRLI Tip of the Month

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Behind the Headlines

Providing Illegal Aliens Driver's Licenses
Governor Spitzer of New York announced late last month that New York would provide driver's licenses to illegal aliens. Contrary to the 70% of New Yorkers who disapprove of this act, Governor Spitzer plans to go forward with this action. Secretary of Homeland Security Michael Chertoff contacted the Governor to express his Department's deep concern that Spitzer's proposed executive order would seriously interfere with federal enforcement of federal immigration laws.

After discussions with DHS, Governor Spitzer has altered his plan to propose a 3-tier system of identification. New York will produce an "enhanced driver's license" that will be secure like a passport. A second version of the license will meet all the federal standards of the Real ID Act. A third "license" will be available to undocumented immigrants, but cannot be used to drive out-of-state or for federal ID purposes.

Reacting to this measure, the New York legislature has proposed two bills, S 6479 and A 9468 mandating that an individual demonstrate lawful status to obtain a driver's license. In addition, a number of New York County Clerks have announced that they will report any illegal alien trying to obtain a driver's license to federal immigration officials (read the article).

Rensselaer County Clerk Frank Merola has filed a lawsuit in Albany County courthouse against the New York DMV to try to prevent this measure. (Merola v. NY DMV filed 10/22/07) The complaint seeks injunctive relief pursuant to NY CLS CPLR Article 78, on the ground that the DMV would exceed its statutory authority by providing drivers licenses to illegal aliens.

IRLI believes that the proposed three-tier solution still violates federal law and would be unconstitutional. First, issuance of driver's licenses without verification of immigration status violates the Real ID Act (Pub. L. No. 109-113, Div. B, 119 State 231 (2005)). The Real ID Act required all 50 states to have initiated the Systematic Alien for Verification Program (SAVE) by September 11, 2005. The SAVE Program enables government agencies, at all levels, to verify an applicant's immigration status to determine a non-citizen applicant's eligibility for public benefits.

Second, IRLI believes that illegal aliens are barred as a matter of federal law from claiming legal residence in a state to establish residence. In almost all 50 states, domicile requires a two-part test, physical presence in the jurisdiction, as well as intent to remain permanently. An illegal alien as a matter of law lacks the requisite intent to permanently remain in the United States, since they are subject to detention and deportation at any moment. (See Toll v. Moreno,458 U.S. 1 (1982)). Any attempt by a state to circumvent federal immigration law by recognizing illegal aliens as state residents for official ID purposes is an unconstitutional "regulation of immigration."

Several of the "outlaw" states which continue to issue official licenses to illegal aliens use a social security number loophole. All license applicants are required to provide their social security number, but persons who do not possess a SSN are not excluded from eligibility. Under current procedure, the New York Department of Motor Vehicles requires that such persons provide additional documentation explaining why they do not have an SSN. This has administratively restricted the SSN loophole, as illegal aliens are forced in effect to disclose their unlawful status to the licensing agency. IRLI believes that these loophole statutes and practices are unconstitutional on due process and equal protection grounds, as they provide preferential lower requirements for illegal aliens on the basis of alienage, national origin and immigration status. IRLI is soliciting expressions of interest from parties seeking to bring a legal challenge to this practice in one or more of the "outlaw" jurisdictions.

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New Bills

Florida HB 159
HB 159 was pre-filed at the end of September. HB 159 is called the Florida Security and Immigration Compliance Act. This bill provides that law officers shall check the lawful status of those arrested.

Florida HB 424
HB 424 was pre-filed on October 3, 2007. HB 424 provides enhancing penalties for smuggling illegal aliens into the United States.

Florida SB 388
SB 388 provides that no public employers shall enter into contracts with employers that do not use the E-Verify Program (formerly the Basic Pilot Program). The bill further requires that all public agencies shall verify the lawful status of its employees.

Michigan HB 5337
HB 5337 requires an individual to submit sufficient evidence of citizenship in order to vote. If satisfactory proof of citizenship is not provided, the application will be rejected.

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Local Legislation

Anchorage, Alaska
Assemblyman Bauer introduced IRLI's draft model ordinance providing for a 287g cooperative agreement between local law enforcement and the U.S. Department of Homeland Security. See July Legislation Bulletin for more information on this type of agreement. A hearing has been set to discuss this ordinance on November 14, 2007.

Chesapeake, Virginia
The City Council has approved an ordinance requiring city contractors and vendors to certify that they do not hire and employ illegal aliens.

Louisville, Kentucky
The Louisville Metro Council has introduced a Resolution to bar illegal aliens from obtaining certain public benefits. Council member Doug Hawkins proposed the resolution, which would be followed up with an ordinance.

Orange County, California
The Orange City Council has mandated that two forms of identification are required to ensure compliance with federal immigration laws at the city operated day labor site. The Orange County Register stated that at least a dozen day laborers have been turned away from the site for failing to meet the new identification requirements.

Prince William County, Virginia
Prince William County passed an Ordinance on October 17, 2007 which restricts the public benefits available to illegal aliens. This Ordinance also provides that local law enforcement officers may, in conjunction with the Department of Homeland Security, enforce federal immigration laws. IRLI assisted in drafting this ordinance.

San Francisco, California
The Board of County Supervisors is debating whether the City should give all San Francisco residents an identification card regardless of citizenship status. Supervisor Tom Ammiano introduced this Ordinance in mid-September. This card could be used to obtain health care and city benefits. See September Legislation Bulletin for more details.

St. Charles, Missouri
The City Council voted 9-0 to enact a cooperative agreement between its local law enforcement officers and federal immigration officers (a.k.a. a 287g agreement). These agreements are authorized by the Illegal Immigration Reform and Immigrant Responsibility Act (8 U.S.C. §1357g). See July Legislation Bulletin for more details on this type of agreement.

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Other Bills to Watch Encouraging Illegal Immigration

California AB 976
Governor Schwarzenegger enacted AB 976 into law in October. AB 976 is featured in the May Legislation Bulletin. The bill would prohibit a city, county, or city and county from requiring a landlord to, among other things, compile, disclose report, provide, or otherwise take any action regarding a tenant or a prospective tenant based on the immigration or citizenship status of that tenant. IRLI believes the measure is unconstitutional, and is reviewing a legal challenge with interested local officials and citizens in California. City or county officials in California may contact IRLI with expressions of interest in this matter.

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IRLI Tip of the Month:

Racial Profiling or Discrimination Allegations

Immigration status does not generally raise equal protection claims, because citizens, non-immigrants, and illegal aliens are not normally similarly situated classifications. However facial equal protection challenges can occur in the local immigration enforcement context if, for example, a local law restricted activities of "foreigners" or persons of an identifiable national origin or ethnic group.

The Equal Protection Clause of the 14th Amendment of the United States Constitution guarantees that every state give equal protection of the laws to any person in that state. If a bill or ordinance contains language that racially profiles or discriminates against a specific ethnicity, that bill or ordinance may likely be declared unconstitutional for violating the Equal Protection Clause.

To avoid these obstacles, legislation must apply to all individuals equally. For example, "officers shall inquire into the immigration status of the person, regardless of the person's national origin, ethnicity or race..." could not be considered as racially targeting any specific ethnic group. By assessing the citizenship status of all individuals, racial profiling does not exist as all races and ethnic groups are treated equally.

IRLI assists in developing and reviewing draft legislation to prevent or minimize the risk of inadvertent equal protection disputes. Requests for assistance, which is provided without cost as our limited resources permit, are welcomed from both officials and private parties.