DHS Belatedly Initiates Analysis of State Laws Granting Driver's Licenses and IDs to Illegal Aliens

By Dan Cadman on January 9, 2020

Chad Wolf, acting secretary of the Department of Homeland Security (DHS), is directing all components to conduct a review of states' driving license issuance and sharing policies.

This is in no small measure due to the recently enacted New York State "Green-Light" statute that:

  • Requires provision of licenses to illegal aliens;
  • Obliges issuing officials to accept foreign documents as proof for identification and verification; and
  • Prohibits those officials from sharing motor vehicle and licensing information with federal immigration officials.

New York's law is so broad that many county clerks object that it will open the door to massive identity theft, voter fraud, and even possibly providing licenses to terrorists and other national security threats. Litigation by counties fighting against implementation has begun (see here, here, and here).

The analysis Wolf has requested is an excellent idea. One wonders, in fact, why his own Office of Policy at DHS didn't take this upon itself earlier. Note that it is not just DHS's immigration agencies such as CBP, ICE, and USCIS that are impinged by these laws, but also the Transportation Security Administration, which relies upon the secure and appropriate issuance of state driver's licenses and official ID cards in its mission of granting or denying access to individuals seeking to board commercial aircraft in the United States. There are a number of problem areas that need to be explored in these analyses, some of which are discussed below.

First, state statutes that prohibit sharing of information on licenses issued to aliens, whether those aliens are legally or illegally in the United States, violate two federal statutes, 8 U.S.C. Section 1373 and 8 U.S.C. Section 1644.

This is no small matter, given the damaging implications not just in routine illegal immigration removal cases, but more significantly to national security, alien fugitive, and criminal alien cases. My colleague Art Arthur recently blogged about a Liberian war criminal who was released by New York City Police rather than honor an immigration detainer. Think how likely such interactions will likely play out with aliens seeking licenses, which is a much more common occurrence than being taken into custody by local police. How ironic that, in pursuit of "progressive" values, the state of New York chooses to turn a blind eye toward such individuals rather than cooperate with immigration officials.

Second, there are cogent reasons to think that states that issue driver's licenses to illegal aliens — most especially when the acceptance threshold for documents submitted to verify identity, citizenship, and status are so broad as to raise significant possibilities of rampant fraud, identity theft, or national security threats — cannot possibly be in substantive compliance with the provisions of the federal Real ID Act (Title II of Division B of Pub. Law 109-13).

The Real ID Act prescribes minimal thresholds that must be met for states to issue driver's licenses and identification cards (IDs) that will be accepted by the federal government for specified official purposes:

The term ''official purpose'' includes but is not limited to accessing Federal facilities, boarding federally regulated commercial aircraft, entering nuclear powerplants, and any other purposes that the [DHS] Secretary shall determine. [Emphasis added.]

The Act is clear and detailed in its mandate that states accept only foreign passports for documentation, and also that state authorities verify the individual's status prior to issuance, through exchange of information with the federal SAVE (Systematic Alien Verification for Entitlements) database.

States that issue driver's licenses and IDs to illegal aliens will no doubt argue that they have created a bifurcated system for issuing two types of licenses and IDs: those that are Real ID Act compliant, and those that are not, which therefore satisfies the requirements of the law. Of course, such a two-tier system vitiates the intent behind the Real ID Act, which obviously was to leverage federal powers and systems to aid states in ensuring that their documents are not provided to those who would do us harm, leaving one to ponder exactly what "compliance" means. But how can a state purport to be submitting names and other biographic data through the SAVE system (which is maintained by immigration officials) in order to produce Real ID Act-compliant licenses and IDs as federal law requires, when their own law prohibits sharing information with the federal government? How do states purport to square that circle?

We also must ask how a state using a two-tier system can possibly ensure there is no bleed-over of ineligibles who end up receiving documents that assert Real ID compliance (usually with a gold star or some other indicia) when these individuals are illegally in the United States, or have engaged in identity theft by providing fake supporting documents to obtain the license or ID card. Time after time, we have seen state motor vehicle officials engage in exactly such confusion by allowing aliens to register to vote under the motor-voter law at the time they issue a driver's license (see here and here). Why should we think they would be any more discriminating or proficient with bifurcated document-issuing systems, especially when they are being obliged to accept a proliferation of foreign documents in other languages, including from countries in which there is endemic corruption and such documents are routinely forged or obtained through illicit means?

Part of the problem, though, is with DHS itself. The department has been absurdly lenient in how it chooses to accept a state's certification that it is Real-ID Act compliant. (This is self-evident with even the most cursory glance at the compliance map on DHS's website). Not one state has been found noncompliant, and only one is "under review" — but how can that possibly be when so many states have gone down the two-tier path?

It is worse when states go further to prohibit access to a state's licensing and ID database(s) for cross-check and auditing purposes, because absent such access, DHS cannot possibly ensure that a state certification isn't literally a paper exercise with no legitimate foundation on which to believe that the "compliant" documents issued reflect reality. This is one of those areas where the secretary has chosen not to exercise his or her considerable powers under the law to refuse to accept at face value the assurances of states, or to conduct audits to probe under those potentially bug-ridden certifications.

Nor does it appear that any DHS secretary has fully considered the meaning of the statutory phrase "other purposes that the Secretary shall determine", as emphasized above, in order to fully flesh out the applicability of compliant (or noncompliant) licenses or IDs to places and circumstances beyond the bare bones of nuclear plants, airplanes, and federal installations.

Finally, there appears to be a failure on the part of DHS to coordinate its mandates and obligations with other federal departments and agencies. Consider, for example, the Department of Defense (DOD). There have been a number of instances in which illegal aliens have been part of the workforce permitted onto military facilities to engage in various kinds of construction or repair work (see, e.g., here and here). How do they get in at all, if the base commander is ensuring access only to individuals possessed of Real ID-compliant licenses or ID cards? Generally under DOD policy, each base commander sets, and oversees compliance with, the rules outlining access to the facility he or she commands. Some commanders are more stringent and demanding of accountability than others.

Similarly, consider the provisions of 49 U.S.C. Section 30302, which establishes a National Driver Register maintained by the federal Department of Transportation (DOT). States choose whether to participate, but because it's in their interest, almost all do. The register maintains a database of driver's license offenders — those whose licenses have been suspended, revoked, etc. for various reasons. It is of real use when an individual applies in any state so that state may make judgments about whether it should deny a license based on violations in other states that suggest the individual is unfit to operate a motor vehicle. For this reason, 45 states and the District of Columbia apparently have signed on (see here and here).

The DOT secretary is authorized to provide information in the register to other federal departments and agencies upon request. Its use against aliens charged for DUI/DWI and hit-and-run or vehicular homicide offenses is self-evident. While the provisions establishing the registrer make clear that provision of information must be consistent with the federal Privacy Act, it's worth noting that the only individuals who are covered by the Privacy Act are U.S. citizens and alien residents — nonimmigrants and aliens illegally in the country are excluded from coverage. But the question here is simple: Has DHS ever even reached out to DOT to negotiate a memorandum of understanding for access to the register? If not, why not?

Astute readers may have noticed that I mentioned, but have not discussed, illegal voting and registration fraud by aliens. DHS agents certainly have authority to conduct investigations of such cases. Voting by aliens and false claims to U.S. citizenship are federal criminal offenses; they are also a basis for removal. But principal authority for oversight of state voter registration lists was vested in the attorney general by the National Voter Registration Act ("NVRA", found at 52 U.S.C. 20501 et seq., see here and here), the "motor-voter" law that authorized registering voters when providing driver's licenses and official ID cards.

Readers may also recall that early in his tenure President Trump called for a commission to study the problem of alien voter fraud; certainly there have been plenty of indicators that such fraud exists (see here, here, here, and here). The commission disbanded without completing its work after recalcitrant states refused to cooperate. Unfortunately, the commission had no statutory basis to compel cooperation.

This is not true with the attorney general, who has authority under the NVRA to ensure against unlawful disenfranchisement of legitimate voters — a significant concern, given our country's history — but also to ensure that state-maintained voter registration lists consist only of legitimate voters, to ensure against the kind of fraud that dilutes the popular vote and throws close elections, such as double-voting, voting by dead people, voting by disenfranchised felons and, significant for this report, voting by aliens. The problem is that almost all of the Justice Department's Civil Rights Division's efforts have been devoted to the first concern, and virtually none toward the second.

Should Attorney General Barr decide to right this imbalance, and there's every reason to think he should, then it would be right and appropriate for his office to reach out to the DHS secretary to seek assistance in the vetting of state lists through computer matching and other techniques, in order to identify aliens who may be illegally registered to vote in federal elections, purge them from the rolls, and take appropriate follow-up enforcement action against them.