STATE DRIVER’S LICENSES AND IDENTIFICATION CARDS FOR UNDOCUMENTED IMMIGRANTS: WHAT IS THE REACH AND THE SCOPE OF THE FEDERAL GOVERNMENT’S POWER TO STEP IN?


Posted By: Amanda Paige Garrey, Amber Fogel, Stephanie Fisher, Jennifer Gulbin, Dan Granados, and Todd Evans

Picture2Introduction

Throughout the history of the United States, the scope of congressional power and whether or not certain acts of Congress infringe on the rights of the States has been widely and hotly debated. Article I, Section 8 of the Constitution enumerates the powers granted to Congress. Clause 18 of Article I, Section 8 is known as the Necessary and Proper Clause, and states that Congress has to power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The Tenth Amendment  provides that “The 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.”

Recently, there have been a number of states and cities issuing driver’s licenses and other forms of identification to undocumented, undocumented immigrants. As illustrated in the graphic, some of the most notable states issuing these driver’s licenses include New York City, California, and Illinois. Given the current political climate, it is not inconceivable that the federal government may attempt to regulate the States involved in these activities. Therefore, this blog post will examine the reach and the scope of Congress’ and the President’s power to control these activities. First, we will analyze whether the Constitution grants Congress legislative authority over this activity, such as legislation prohibiting these States from issuing driver’s licenses or other forms of identification to undocumented immigrants and compelling States to provide them with the records previously generated by their programs to deport the undocumented immigrants. In analyzing Congress’s power to enact such legislation under the Constitution, we focused specifically on the Commerce Clause (Clause 3), the Naturalization Clause (Clause 4), and the Necessary and Proper Clause (Clause 18), and the Supreme Court’s interpretations thereof and determined that Congress would have the power to enact this legislation. Next, we analyzed whether this legislation would be prohibited by Tenth Amendment principles of federalism. We determined that the legislation prohibiting the States from issuing the driver’s licenses would not violate the Tenth Amendment, however the legislation compelling the records previously generated from these programs would be prohibited under the Tenth Amendment principles of federalism and the Anti-Commandeering Doctrine.

Does Congress Have the Power to Enact this Legislation?

Where exactly does Congress’s authority come from? The Constitution, of course. Article I, Section 8 of the Constitution lists each of Congress’s powers. We are concerned here primarily with the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes, Commerce Clause (Clause 3),” the power “to establish an uniform Rule of Naturalization,”  the Naturalization Clause (Clause 4), and the final power, which may well be the most powerful of them all, namely the power to “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department of Officer thereof, and the Necessary and Proper Clause (Clause 18).” In addition, we discuss the impact of the Tenth Amendment and the Anti-Commandeering Doctrine.

The Necessary and Proper Clause

No discussion of the Constitution would be complete without a mention of McCulloch v. Maryland, one of the most important cases in United States history. In this case, which dealt with Congress’s authority under the Necessary and Proper Clause, Chief Justice John Marshall famously wrote, “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Under this three-part test, the degree of efficiency by which the means achieve the end is left to Congress to determine. The means only need to be the slightest bit efficient to be considered proper.

In McCulloch, Marshall reasoned that the Necessary and Proper clause is placed in the “powers” rather than “limitations” section of Article I, and the language of the clause also suggests an enlargement of powers. Marshall held that the Necessary and Proper Clause functions to expand and help carry out– rather than limit– Congress’s enumerated powers. Therefore, under the Necessary and Proper clause, Congress has very broad powers to create laws they deem necessary and proper to exercising their enumerated powers, such as the Commerce Clause, which we’ll discuss in detail soon.

The Naturalization Clause

The Naturalization Clause provides that Congress has the power “to establish an uniform Rule of Naturalization . . . throughout the United States.” Since the end is congressional authority to establish uniform rules regarding immigrants, prohibiting states from issuing various forms of identification is a valid means since it helps achieve that end, per the analysis in McCulloch and Darby.

The Commerce Clause

The Constitution delegates to Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  The extent of Congress’ Commerce Clause Power has been addressed in four predominant Supreme Court Cases: (i) United States v. Lopez, (ii) United States v. Morrison, (iii) Gonzales v. Raich, and (iv) National Federation of Independent Business v. Sebelius . In this section, we will explain how we used these cases to analyze whether Congress would have the authority to regulate this activity under their Constitutionally enumerated powers by enacting legislation, and how we came to the conclusion that regulating this activity would fall within their legislative authority.

United States v. Lopez

In United States v. Lopez, Congress would likely have the power to enact the legislation. In that case, Supreme Court was tasked with determining whether the Gun Free School-Zone Act of 1990 was constitutional under this enumerated commerce clause power.  In Lopez the court enumerated three broad categories in which Congress may use their commerce power to enact regulation.  First, Congress’ commerce power extends to the channels of interstate commerce. Second, Congress has the power to “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.”  Third, Congress has the commerce power to regulate activities that have a substantial relationship with interstate commerce, and thereby substantially affect interstate commerce.  The Court, in informing their adoption of this categorical test, relied on the analysis used in United States v. Darby in determining whether the legislation is “an appropriate means to the attainment of a legitimate end.”

In analyzing whether the Gun Free School-Zone act fell within one of these commerce clause powers, the court quickly ruled out that Congress had the power under the first two enumerated categories because the Act did not seek to regulate a channel or an instrumentality of interstate commerce. Therefore, the Court analyzed the question of commerce clause authority to enact legislation that banned guns in school zones under the third category, whether the act of carrying a gun in a school zone has a substantial effect on interstate commerce.  The Court held that, unlike in Wickard where the legislation was upheld that regulated a wholly intrastate economic activity, carrying a gun in a school zone is not an economic activity. The Court therefore held that the Act could not be “sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.”  Further, the Court noted that there was no jurisdictional element in the Act that would ensure on a case-by-case basis that the firearm in question had passed through or affects interstate commerce.

Under the Lopez categorical test, Congress has the commerce power to enact legislation prohibiting the states from issuing driver’s licenses to undocumented immigrants and legislation to compel and access the records generated by the State programs in order to deport the immigrants. First, it could be argued that the enactment of legislation that would regulate these activities falls within the commerce power because it regulates a channel of interstate commerce.  This is because the issuance of a valid driver’s license to undocumented immigrants enables them to travel on interstate highways, which are considered to be a channel of interstate commerce.  Furthermore, the legislation may be upheld under the third category of Lopez, because the States issuing driver’s license to undocumented immigrants enables them to buy and drive cars on federally funded roadways.  Under the Necessary and Proper Clause, this legislation could be justified as a means to regulate interstate commerce because the aggregate effect of issuing driver’s license to undocumented immigrants could have a substantial effect on interstate commerce.  This is because it enables undocumented immigrants to lawfully drive through interstate boundaries, to utilize federally funded roadways, to purchase vehicles, and to confirm age to enable the purchase of goods that require a minimum age. All of these activities can be seen to have an effect on interstate commerce. Even further, it costs money to go to the DMV and purchase a driver’s license, and therefore under the Lopez test, the legislation could be upheld because the activity it is seeking to regulate, although wholly intrastate in nature, is an economic activity that substantially affects interstate commerce.

Moreover, according to Lopez, Congress has the power to enact this legislation under the Necessary and Proper Clause of the Constitution.  The Lopez Court said that “[i]n addition to its powers under the Commerce Clause, Congress has the authority to enact such laws as are ‘necessary and proper’ to carry into execution its power to regulate commerce among the several States.” Under this view, and the Darby Court’s means end test, this legislation could be seen as a necessary and proper means to attaining the legitimate end of both regulating interstate commerce and the enumerated end in Article I, Section 8 that states that “Congress shall have power to…establish an uniform Rule of Naturalization.” Enacting legislation to police this activity is a necessary means to the enumerated ends of regulating interstate commerce and maintaining the uniform rules of naturalization.

United States v. Morrison

Under United States v. Morrison and the Commerce Clause, Congress has the authority to enact legislation prohibiting states from issuing driver’s licenses and IDs to undocumented immigrants. In 1994, Congress enacted the Violence Against Women Act (VAWA).  Section 13981 of this act states “[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender.”  This act provided damage remedies to victims by any person who committed a crime motivated by gender.  Congress enacted this under the Commerce Clause, and reasoned that gender-motivated violence affects interstate commerce “by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce.”  In 1995, victim Christy Brzonkala was repeatedly raped by Antonio Morrison and James Crawford at Virginia Tech University.  When the university set aside Morrison’s punishment, Brzonkala brought suit against Morrison, Crawford, and Virginia Tech University.  The complaint alleged Morrison and Crawford violated §13981.  The defendant alleged §13981 was unconstitutional, and the United States intervened to defend it.

After granting certiorari, the Supreme Court analyzed whether Congress had the power to enact VAWA under the Commerce Clause.  The court used United States v. Lopez to guide its analysis.  Specifically, the court looked at the three categories of activities observed in Lopez that Congress has the power to regulate under the Commerce Clause.  The categories include Congress’ power to regulate: (1) the use of channels of interstate commerce, (2) to protect the instrumentalities, persons, or things of interstate commerce even in intrastate activities and (3) activities that substantially affect interstate commerce.  The court applied this analysis to the enactment of §13981 and determined that it is a criminal statute that has no relevance to commerce or economic organizations.  Second, the court reasoned that while numerous findings supported the theory that gender-motivated violence seriously impacted victims and families, it was not sufficient by itself.  Third, the court rejected the argument that gender-motivated violence substantially affected interstate commerce because the effect was aggregate and Congress relied upon an unworkable method of reasoning.  The court stated that Congress’ reasoning was a but-for causal chain from the initial crime to every potential effect on interstate commerce.  The court held VAWA as unconstitutional because gender-based crimes are not an economic activity and do not fall into any of the three categories.  Therefore, Congress did not have the power to create this regulation under the Commerce Clause.

Based on the Morrison test, Congress does have the power to enact legislation prohibiting states from issuing driver’s license and IDs to undocumented immigrants.  It must first be established that under Morrison, which follows the Lopez analysis, Congress has the authority to enact legislation under the Necessary and Proper Clause of the Constitution.  Because one of Congress’ enumerated powers is “to establish a uniform Rule of Naturalization” under Article I Section 8 Clause 4, it can enact necessary legislation to accomplish this goal.

Under the categorical test applied in Morrison, Congress has the power to enact legislation prohibiting states from issuing driver’s licenses and IDs to undocumented immigrants.  First, the issuance of driver’s licenses directly impacts the use of channels of interstate commerce.  Commerce depends on the transportation of goods between states by vehicles.  This industry relies on driver’s licenses and can be defined as a channel of interstate commerce.  Second, driver’s licenses and IDs can both be considered instrumentalities of interstate commerce because they both allow individuals to purchase goods (such as alcohol) produced and transported between states and protect persons in interstate commerce (such as fraud).  Thirdly, the issuance of driver’s licenses substantially impacts interstate commerce in many ways.  It allows individuals the opportunity to purchase cars, travel between states, drive to their places of employment, transport goods, support other states’ economies through tourism, attain employment which requires proof of identification, travel via national airlines which also requires proof of identification, and much more. Furthermore, these driver’s licenses cost an initial fee to obtain and allow undocumented immigrants to register their vehicles—which also costs an additional fee. These fees include taxes and charges which support the construction and upkeep of roads; both are imperative to the transportation of interstate goods. Based on the applicability of these three categories, the issuance of driver’s licenses and IDs is inherently economic and can be regulated by Congress.

Unlike Morrison, these factors all support the method of reasoning is not aggregate or but-for. It is clear that the activities which driver’s licenses and IDs allow undocumented immigrants to engage in are inherently economic.  Therefore, based on Morrison, Congress has the power under the Commerce Clause to enact legislation on the issuance of driver’s licenses and IDs. While this establishes that Congress has this enumerated power to enact legislation, its ability to regulate the states via prohibition must be analyzed under the Anti-Commandeering Doctrine.

Gonzales v. Raich

Under the Court’s holding and rationale in Gonzales v. Raich, Congress has the power to both prohibit states from issuing identification to undocumented immigrants and compel states to provide information from such issuances. In Gonzales, the Court determined if Congress had the power to regulate the private growth and use of medical marijuana. In 1970, Congress enacted the Controlled Substances Act. This act categorized illegal drugs, including marijuana, into different “schedules” and prevented their sale, purchase, and possession. In 1996, California enacted the Compassionate Use Act, which allowed the use of medical marijuana within the state by people needing it for medical purposes. Angel Raich and Diane Monson were California residents who legally utilized marijuana to treat medical issues. Despite having approval from California state officials, federal agents seized and destroyed Raich’s marijuana plants. Raich brought suit against United States Attorney General Alberto Gonzales, seeking relief to prohibit the enforcement of the Controlled Substance Act.

In a 6-3 decision, the Court declared the Controlled Substance Act constitutional. While not actually overturning Morrison or Lopez, the Court did not apply the same legal rules and rationale established in those cases. Instead, the Court relied upon McCulloch v. Maryland and Wickard v. Filburn. The Court here held that Congress may regulate the private growth and use of medical marijuana, since the activity, taken in the aggregate, could rationally be seen as having a substantial economic effect on interstate commerce. Congress sought to regulate and ultimately eliminate the national market for illegal drugs by eliminating home-grown varieties. The Court explained that the Controlled Substance Act was a reasonable means for effecting an end which was rooted in the interstate trade of illegal drugs.

In McCulloch v. Maryland, the Court held that ends are enumerated powers in the Constitution and Congress can use any means to exercise its powers, so long as the means are plainly adapted to the end, the end is within the scope of the Constitution, and it consists with the letter and Spirit of the Constitution. Under this three-part test, the degree of efficiency for which the means achieve the end is left to Congress to determine. The means only need to be the slightest bit efficient to be considered proper. The Court reasoned that the Necessary and Proper clause is placed in the “powers” rather than “limitations” section of Article I, and the language of the clause also suggests an enlargement of powers. The Court held that the Necessary and Proper Clause functions to expand and help carry out, rather than limit, Congress’s enumerated power. Therefore, under the Necessary and Proper clause, Congress has very broad powers to create laws they deem necessary and proper to exercising their enumerated powers such as the Commerce Clause.

In Wickard v. Filburn, the Court held that even though a farmer’s individual consumption of homegrown wheat is a wholly intrastate activity, Congress still had the power to regulate it under the authority of the Commerce Clause. The Agricultural Adjustment Act of 1938 employed a quota on farmers for wheat production. Filburn sued Wickard, the Secretary of Agriculture, to prevent enforcement of a fine imposed on him for exceeding his wheat production quote. The Court reasoned that the act was constitutional because although the consumption of homegrown wheat was wholly intrastate, it exerts a substantial economic effect on interstate commerce. One of the main purposes of the act was to increase the market price of wheat by limiting the amount available in the market. Because excess homegrown wheat could either flow into the market or the person who grew it would have no need to obtain wheat from the open market, homegrown wheat therefore competes with wheat in commerce. Although the individual farmer’s own contribution to the demand for wheat may be trivial by itself, when taken together with many others who are similarly situated, it would in fact have a substantial impact on interstate commerce. The Court also applied the Necessary and Proper Clause test of McCulloch v. Maryland, and held that it was constitutional because the end was rooted in authority given by the Constitution, and that the means were properly adapted to that end.

Based on the holding and rationale in Gonzales v. Raich, Congress has the authority under Article 1, Section 8, Clauses 3 and 4 to enact legislation both prohibiting states from issuing driver’s licenses and other forms of identification to undocumented immigrants and compelling states to provide information from such issuances. Driver’s licenses and various forms of identification have a substantial impact on economic activities, especially when considered in the aggregate. Proper identification is central to a wide range of economic activities. For example, simply applying for government benefits such as welfare, food stamps, Medicaid, or unemployment all require valid photo identification. Being able to legally apply for a job anywhere in the United States requires valid photo identification. Basic activities such as opening a bank account, getting a loan, and buying or renting a home require proper photo identification. A driver’s license allows a person to move themselves across state lines, and certain forms of identification are required to travel via airplane. A person being transported across state lines is inherently economic in nature. A person is likely to engage in the purchase of items such as food, gasoline, and shelter. It also provides the ability to buy and sell goods in another state and even seek work opportunities across the state border.

According to a Pew Research study from 2016, there were 11.1 million total undocumented immigrants in the United States in 2014 and 8 million of those were in the workforce. It is clear that when taken in the aggregate, issuing driver’s license and other forms of identification to undocumented immigrants has a substantial effect on commerce. Here, the end is also rooted in the Constitution under the enumerated powers of Congress. Article 1, Section 8, Clause 4 states that Congress has to the power “To establish an uniform Rule of Naturalization . . . throughout the United States.” Since the end is congressional authority to establish uniform rules regarding immigrants, prohibiting states from issuing various forms of identification is a valid means since it helps achieve that end.

Picture1In sum, both pieces of legislation would hold up to the aggregate and substantial effects test, and therefore Congress has the authority to enact them under their Commerce Clause powers. Dually, Congress has the ability to pass the legislation under the means-end test because the end is rooted in Article 1, Section 8, Clause 4 of the Constitution and because the legislation is a means that is plainly adapted to that end. Therefore, under the Court’s holding in Gonzales, Congress has the power to both prohibit states from issuing identification to undocumented immigrants and compel states to provide information from such issuances.

National Federation of Independent Business v. Sebelius

National Federation of Independent Business v. Sebelius dealt with the constitutionality of both 1) the individual mandate of the Affordable Care Act and 2) the congressional mandate that requires states to comply with the ACA’s medicaid expansion or risk losing their existing federal medicaid funding. Applying the Court’s reasoning here would allow Congress to prohibit states from issuing these licenses under it Commerce Clause powers and allow Congress to use its spending power to try and access the records.

The Court held that the individual mandate is a valid exercise of Congress’s taxing power. However, the Court also held that the individual mandate goes beyond the scope of the powers granted to congress under the Commerce Clause. The Court reasoned that the Commerce Clause authorized congress to regulate “activity” as opposed to “inactivity”. The Court then found that the individual mandate did not regulate existing commercial activity but instead tried to create it. Allowing this to stand would bring Congress near limitless decision-making authority. In turn, the government argued that most individuals without health insurance will eventually require it and thus can have their activity regulated in advance. The Court struck down this argument, reasoning that the Commerce Clause is not a license to regulate an individual from the cradle to the grave simply because he will engage in particular transactions.  

It is fairly clear that possessing a driver’s license constitutes an economic activity, as having one allows one to engage in a wide spectrum of activities, such as driving across state lines on interstate highways or applying for a job. Here, individuals are trying to obtain licenses as opposed to abstaining from them. The element of inaction present in Sebelius is lacking here. Thus, the court’s reasoning in Sebelius would support a finding that Congress can indeed use its Commerce Clause power to prohibit the states from issuing driver’s licenses or similar forms of ID to undocumented immigrants, as this constitutes an economic activity.

Whether Congress could compel and access these records from the states for the purposes of deportation is another matter. This is not in itself an economic activity and would thus fall outside the scope of the Commerce Clause. As a result, Congress would have to turn to other means to obtain these records. One such means may be using its taxing or spending powers to pass legislation to try to influence the states into providing the federal government access to these records. This can be done either by financial rewards for compliance or penalties for noncompliance. When enacting penalties however, Congress must take great care to avoid crossing the line from influence to coercion.

In Sebelius, Congress attempted such methods by threatening to withhold federal funding for the existing Medicaid program of any state that refused to comply with the new Medicaid provisions of the ACA. The court found this provision to be unconstitutional, reasoning that this funding constituted such a large part (10 percent) of a state’s budget is economic dragooning that leaves the states with no real choice but to acquiesce in the medicaid expansion. The Court distinguished this from South Dakota v. Dole, where the state was only threatened with the loss of 5 percent of its highway funds if it did not raise its legal drinking age to 21. Here, the court determined this to be an inadequate amount to be considered financial coercion.

Clearly, whether or not spending or tax power is constitutional is dependent upon how coercive it is…a determination that would likely fall on the court. Thus, if Congress were to have any hope of accessing the records of the IDs of undocumented immigrants, it would have to be cautious with its use its spending so as to not overly penalize non-compliant states.

In conclusion, Congress has the power to enact legislation regarding this activity under their Constitutionally enumerated powers.  However, it is also necessary to consider whether the enactment of legislation regulating this activity would violate the Tenth Amendment federalism principles or the Anti-Commandeering Doctrine.

Would this Legislation Violate the Tenth Amendment and the Anti-Commandeering Doctrine?

While Congress has the legislative authority to regulate this activity, it still may be prohibited under the Tenth Amendment and the Anti-Commandeering Doctrine. Licensing drivers has always been the province of the states.  Each state has its own distinct driver’s license or ID card.  There is no “American” driver’s license. Bearing in mind the wholly intrastate nature of issuing driver’s license it is important to consider whether this legislation would violate the State’s Tenth Amendment rights and the Anti-Commandeering Doctrine.

The legislation prohibiting the states from issuing driver’s licenses to undocumented immigrants would likely be upheld under Reno v. Condon. In Reno, the Driver’s Privacy Protection Act of 1994 (DPPA), which was enacted under Congress’ commerce power and prohibited State’s Department of Motor Vehicles from selling or disclosing drivers’ private information (such as social security numbers, telephone numbers, addresses, pictures, etc.) without the driver’s consent, was upheld. The Court held that since the legislation prohibited States from participating in an activity, rather than compel the States to participate in a particular activity, it did not violate the Tenth Amendment federalism principles. Furthermore, the Court held that in Reno, since the legislation regulated a State activity, “rather than seeking to control or influence the manner in which States regulated private parties”, and because the legislation did not require the States, in their sovereign capacity, to police and regulate their citizens, but instead regulated the States activity, that is was not in violation of the Tenth Amendment federalism principles.

Therefore, under the Reno test of Tenth Amendment federalism, the legislation which would prohibit the States from issuing driver’s licenses to undocumented immigrants would be upheld. Legislation which would prohibit States from issuing driver’s licenses to undocumented immigrants parallels the legislation which was upheld in Reno because it seeks to regulate the States activity, rather than seeking to require the States’ to regulate their citizens’ activities. Furthermore, as in Reno, this legislation would be a prohibition on a State activity, rather than a legislation to compel State activity. Therefore, Congress could likely enact legislation that prohibited the issuance of driver’s licenses to undocumented immigrants because it is within their commerce power and it is not a violation of the Tenth Amendment federalism principles.

However, any attempt to compel the states to give up their driver’s licensing and ID records would be completely contrary to the States’ official statements that the ID’s would not be used for deportation purposes, so the federal government could expect a similarly zealous response to a demand for these records. New York has stated they may erase the ID Card program’s data in order to avoid handing over the information. Illinois said they would ask their Attorney General to challenge any request. If Congress or the President tried to obtain the states’ records on undocumented residents with driver’s licenses, the states would surely not comply, and the issue would undoubtedly become one for the judiciary.  What is the likely response from the Supreme Court? Would the states be compelled to turn over the information in order for the federal government to enforce national immigration laws? Not necessarily. The states could fight back and argue they are not compelled to follow the federal government’s orders because of the anti-commandeering doctrine. The anti-commandeering doctrine prohibits the federal government from ordering state to take affirmative action or to regulate a certain way.

The anti-commandeering doctrine was asserted in 1992 in New York v. United States. In 1986, Congress attempted to deal with the ongoing problem of low-level nuclear waste by enacting the Low-Level Radioactive Waste Policy Amendments Act of 1986.  At the time, states were dealing with their waste by sending it to other states.  But, by 1989, only South Carolina was accepting out-of-state waste.  The statute attempted to force rest of the states to become responsible for their own waste by doing three things: 1) creating a surcharge to be collected by the federal government, which would return the monies to states who created their own facilities; 2) allowing states to deny acceptance of out-of-state waste to their own facilities; and 3) forcing states who did not deal with the issue by 1996 to “take title” to their waste, resulting in the direct regulation of the matter by the federal government against those states.

In an opinion authored by Justice Sandra Day O’Connor, the Court found the third requirement unconstitutional because it essentially allowed the federal government to “commandeer” the states’ own legislative processes.  When it comes to implementing federal legislation, the government must use its own staff and resources.  The Court reasoned that if local officials are forced to carry out federal programs, local officials will be blamed for the results of enforcing the legislation, despite the fact that the program was created by the federal government.  “Congress has crossed the line distinguishing encouragement from coercion,” ruled the Court. Confronted with the fact that New York had originally supported the program, the court held that the purpose of federalism (the separation into two distinct governments, i.e. federal and state) was to benefit the people as individuals.  Therefore, the states do not have the ability to ratify a departure from the Constitution.

In a 1997 case, Printz v. United States, which dealt with the Brady Act, the Supreme Court had the opportunity to address the issue again.  The Brady Act was named after President Ronald Reagan’s press secretary, James Brady, who had been shot in the assassination attempt on the President.  The statute was enacted to help prevent gun violence.  The Act required the Attorney General to establish a national background check by November, 1998.  In the meantime,  gun dealers were required to wait five days to make a sale.  First, dealers had to send a form to Chief Law Enforcement Officers (CLEO’s), who were state employees charged with making a “reasonable effort to determine whether it would violate the law” to complete the sale. Two CLEO’s, one from Arizona and one from Montana, made a legal challenge to the Act and ultimately prevailed at the Supreme Court.  The Court held that the program was “compell[ing] enlistment of state executive officers for the administration of [a] federal program,” a move that was “unprecedented.”  In essence, Congress was taking the President’s responsibility to “faithfully execute” the laws of the land and placing it squarely in the hands of the state officials. Once again, the Court held that the federal government cannot commandeer state officials to do their dirty work, so to speak.

While the federal government has the authority to preempt states’ legislation through the Supremacy Clause, what that means is that Congress can command the states to decline to regulate in some area that they otherwise would, allowing Congress to come in with regulations of its own.  But it does not mean that Congress can use the states’ resources and employees to enforce federal regulations.  Drivers’ licensing has always been the province of the states.   To obtain the associated records, Congress would not only have to come up with some kind of legislation on the subject (which has its own Constitutional issues), but it would have to put the onus of gathering and providing the records onto state employees and officials—a clear case of commandeering.

The President also cannot compel States to hand over the information if they refuse to do so since the anti-commandeering doctrine still pertains to the President. In Youngstown Sheet & Tube, President Truman responded to the threat of a strike by the national steel union laborers by issuing an executive order requiring the Secretary of Commerce to take over the operation of most of the country’s steel mills.  He believed that the proposed work stoppage would bring the nation’s steel production to a screeching halt, jeopardizing national defense in a time of war.  The Court ruled that the President’s position as Commander-in-Chief of the armed forces did not give him the authority to seize private property.  His position gives him the power to “faithfully execute” the laws, not to make them. Congress is the branch of government with lawmaking authority, and if President Trump wanted to seize the records of the states, he would need Congress’s approval and legislation.  Considering that the current Congress is Republican, this is certainly not inconceivable. But again, Congress would be confronted by the anti-commandeering doctrine if they attempted to put the states’ officials and employees in service to a federal program. The Court determined that the President’s power as Commander-in-Chief of the armed forces did not extend to seizing the nation’s steel mills and that his order to do so was an attempt at lawmaking, a power which is reserved to Congress.  In a powerful concurrence, Justice Jackson wrote, “The executive action we have here originates in the individual will of the President and is exercise of authority without law.”  The Court would presumably reach the same conclusion if President Trump attempted to compel the states to provide their drivers’ licensing information for undocumented immigrants

The President would need Congressional approval if he wanted to compel states to hand over the data collected. In Medellín v. Texas, the Court ruled that “[t]he President’s authority to act, as with the exercise of any governmental power, ‘must stem either from an act of Congress or from the Constitution itself.” The Constitution does not give the President the authority to force states to hand over the data from the states. Therefore, the President would need to have Congress pass a law that gives him the power to compel states to hand over the data. In Dames & Moore v. Regan, the Court dealt with an executive order issued by President Reagan, who ratified an agreement with Iran to nullify any claims against Iran by US citizens and to allow such claims to be heard by the Iran-United States Claims Tribunal, whose decisions on such matters would be final.  The agreement had been made right before Reagan took office and resulted in the release of the hostages who had been taken by Iran and held captive for 444 days.  Dames & Moore sued the Treasury Secretary Don Regan in an effort to recoup monies that had been previously awarded to the company by a district court in a suit against Iran.  The Supreme Court held that President Reagan’s executive order was valid because it was made under the power of an act of Congress (International Emergency Economic Powers Act) and because Congress had “implicitly approved the practice of claims settlement by executive agreement” in past cases.  The fact that Congress had expressed no disagreement with the President’s executive order in this case confirmed the Court’s belief that it acquiesced to his action, and Dames & Moore’s case was dismissed.

It would seem that while the express grant of power from Congress to the President to take action on matters related to immigration would obviously be preferable from the President’s point of view, he may also try to exercise that power even if it is based only on Congress’s implicit, rather than express, approval.  If the President issued an order to compel the states to provide their documentation regarding undocumented immigrants, and Congress failed to comment, the President might still still argue that he was acting within his power.

CONCLUSION

Congress can pass legislation prohibiting states from issuing identification cards and drivers’ licenses to undocumented immigrants, but because they would need the assistance of state officials and employees to obtain the records associated to licenses already provided, Congress and the President would have a hard time compelling the states to provide the information.

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STATE DRIVER’S LICENSES AND IDENTIFICATION CARDS FOR UNDOCUMENTED IMMIGRANTS: WHAT IS THE REACH AND THE SCOPE OF THE FEDERAL GOVERNMENT’S POWER TO STEP IN?