I thought State laws that denied drivers licenses (or public school education) to aliens were once thought invalid on grounds of field preemption. That is, that only the federal government could legislate based on alienage. I've no doubt that federal law could preempt the California legislation if it did so expressly, but I don't think the subtext of state law, supposedly at odds with supposed federal policy, is enough to support a holding that the state law is preempted.
John Noble
At 4:49 PM -0700 9/6/03, Scarberry, Mark wrote:
Cal. Governor Gray Davis has signed Senate Bill 60, which is designed to allow undocumented immigrants in California to obtain California drivers' licenses. The bill's author (State Senator Gil Cedillo) has publicly stated that one of the purposes of the bill is to allow undocumented immigrants to drive to work. Gov. Davis made a similar comment, I believe, at the signing ceremony for the bill. The bill allows issuance of a driver's license to someone who says he or she does not have a social security number; the person may give a taxpayer i.d. number and/or other forms of identification. (Apparently the IRS gives a taxpayer id number to anyone who asks, without requiring proof of legal residency and with little proof of identity; thus undocumented immigrants can obtain such numbers.) SB 60 requires that information such as the taxpayer id number be kept confidential with exceptions that do not, as far as I can tell, include disclosure to the federal immigration authorities.
My questions for the list, should list members choose to accept them:
1. Is SB 60 preempted by federal law, inasmuch as a stated purpose of the bill is to facilitate working by undocumented immigrants, which violates federal law? Consider Hoffman Plastic Compounds, Inc. v. NLRB, 535 US 137 (2002), which holds that "combating the employment of illegal aliens [is] central to '[t]he policy of immigration law." (Thus, on a 5-4 decision, the Court determined that an illegally fired undocumented immigrant could not be awarded back pay.)
2. Who would have standing to challenge the bill? I think California courts have more permissive standing rules for taxpayers than do federal courts; maybe a taxpayer could challenge the bill in state court on the theory that it costs (as I understand it) more to issue a license than the fee that is charged.
3. Does the provision in SB 60 that the information shall not be disclosed (which was pretty clearly, I think, put in the bill to reassure undocumented immigrants that the information would not be passed on to the feds) affect the answer to question 1? If I recall correctly, a recent federal statute, the constitutionality of which has been upheld at the circuit court level, prohibits states or municipalities from doing anything that would prevent state or local agencies or officials from providing information to the federal immigration authorities. As far as I can tell, SB 60 does not have a severability clause.
4. Have the opponents of SB 60 overreached by arguing that it will promote voter fraud by encouraging undocumented immigrants to register to vote? I think the motor-voter law requires that all applicants for drivers' licenses be invited to register, though I suppose it allows or requires the invitation to include a proviso that only eligible persons may register. In any event, I think that a person would be allowed to register to vote if he or she showed a valid Cal. driver's license and stated the he or she was a citizen. (To tie this in to the list, could this be a basis for a claim of dilution of legitimate votes?) But couldn't the same argument be made concerning issuance of drivers' licenses to noncitizen legal residents -- and thus the argument proves too much? (That's why I ask whether it overreaches.)
5. Could the federal govt force California to repeal the new law by announcing (via the Transportation Security Administration) that California drivers' licenses will no longer be accepted as i.d. for getting on airplanes once SB 60 goes into effect? That wouldn't violate any right to travel, would it? (OK, I know that's a reach, but it does tie this question in to the list topic....)
Mark Scarberry Pepperdine
