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Trump Admin Won’t Let States Issue Undocumented Immigrants Driver’s Licenses Without a Fight

Acting Homeland Security Secretary Chad Wolf 

Brace yourselves. You’re about to see states’ rights conservatives twist themselves into ideological pretzels as they insist the federal government should have a bigger say in state rules for issuing driver’s licenses. As usual, the underlying issue has little to do with driving and everything to do with illegal immigration.

New York’s “Green Light Law” went into effect on December 14, making it the fourteenth state to allow undocumented immigrants to obtain driver’s licenses. Now, the Trump administration has, once again, pitted itself against the Empire State.

Acting Homeland Security Secretary Chad Wolf announced Tuesday that the Department of Homeland Security (DHS) would be conducting a departmentwide study of the effects of issuing state driver’s licenses to undocumented immigrants. And by “departmentwide study,” I mean DHS will be desperately searching for evidence that undocumented immigrants with licenses are dangerous, while ignoring any practical and economic benefits.

The impetus behind “green light” laws isn’t so much about demonstrating compassion toward undocumented immigrants as it is a common-sense way of managing an existing problem. Undocumented immigrants are already residing in all 50 states. Allowing them to drive legally not only generates income for the states themselves and for merchants in the auto and gasoline industries, but it also allows drivers and their families to participate more fully in education, community, and the work force. Plus, there’s the auto insurance issue. Where there are drivers, there will always be accidents; licensed drivers can buy insurance, which guarantees compensation to anyone harmed by an accident. Given the alternative reality – that undocumented immigrants would proceed as uninsured motorists – licensing seems a pretty solid idea.

Whatever anyone thinks about the wisdom of “green light” laws though, there can be little question that states themselves have the authority to make their own rules about driving. Because driver’s licenses are the ultimate intra-state activity, individual states have full authority to set their driving ages, conditions for driving, and road rules within their own borders. That’s why you can drive at 14 in South Dakota and not until 17 in New York.

The Trump administration knows all this. And it also knows that the federal government has no right to intrude on purely intrastate activity. However, it also can’t resist what has become an increasingly political topic. County clerks are rallying and refusing to follow state law and issue licenses to undocumented applicants. Litigation has begun, and the battle between following the law and making newsworthy anti-immigration headlines is in full force.

With its new study, Trump’s DHS is taking the first steps toward shutting down the growing trend of licensing undocumented immigrants – and allowing the federal government to meddle in what has always been a state matter. Under what’s known as the “dormant commerce clause,” the federal government has authority to regulate even a wholly intra-state activity if it has significant inter-state consequences. DHS spokeswoman Heather Swift couched the issue in terms of safety, arguing that these driver’s license laws “make it easier for terrorists and criminals to obtain fraudulent documents.”

Whether DHS’s ultimate plan is to build a case for directly prohibiting states from issuing licenses to undocumented immigrants is not yet clear. Alternatively, it could use the data collected to strong-arm states into changing their driving rules by conditioning federal funding – the way Congress did with the National Minimum Drinking Age Act in 1984. The statute — 23 U.S.C. § 158— was the ultimate workaround. Congress knew it couldn’t directly regulate alcohol consumption inside state borders, so it conditioned highway funds on states’ passing their own laws. The result was effective and enduring.

[screengrab via Fox News]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos