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May 03, 2005

THIS DRIVER'S LICENSE BILL may have constitutional problems:

Congress is moving quickly toward setting strict rules on how states issue driver's licenses, requiring them to verify whether each applicant for a new license or a renewal is in this country legally. . . .

Under the rules being considered, before granting a driver's license, a state would have to require proof of citizenship or legal presence, proof of an address and proof of a Social Security number. It would need to check the legal status of noncitizens against a national immigration database, to save copies of any documents shown and to store a digital image of the face of each applicant.

This sounds like the Printz case, in which the Supreme Court found that Congress could not similarly "commandeer" local officials by requiring them to do background checks before people were allowed to purchase firearms, even if Congress could regulate such purchases directly. The case may not be quite on all fours, as the penumbral effect of the Second Amendment may have influenced the Court in Printz, and as Congress has exclusive power over immigration, but I think the commandeering angle looks very much the same. As the Court said in Printz:

[L]ater opinions of ours have made clear that the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs. . . .

The Government also maintains that requiring state officers to perform discrete, ministerial tasks specified by Congress does not violate the principle of New York because it S 930does not diminish the accountability of state or federal officials. This argument fails even on its own terms. By forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for ‘‘solving’’ problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects.

I haven't read the bill, but based on the description in the story quoted above, this would seem to fit rather neatly.

I'm not opposed to the bill on its merits -- why should illegal aliens be able to get drivers' licenses -- but unless there's something missing from the story, this seems like a major, and fairly obvious, constitutional objection. Perhaps the federalists in the Republican Congress have noted this objection and addressed it, though I couldn't find any evidence that this was the case. If not, well, it's another example of "Fair Weather Federalism" from the GOP, I guess. Or am I missing something here?

UPDATE: Reader Jonathan Karen says that it's okay because it's in an appropriations bill. I thought of that. But -- at least as I read the story -- it's an unrelated amendment to the Iraq appropriations bill, perhaps done so as to ensure passage, and to limit White House opposition. ("They got a pledge from the leadership to include the driver's license measures in a must-pass bill this year.") But it doesn't seem to be a conditional funding rule, unless I'm missing something.

Congress would have the power, I think, to make such action a condition for receipt of federal highway funds -- it's no more absurd than the drinking-age requirement (thanks, Liddy!) imposed the same way and upheld in South Dakota v. Dole. But if that's what they're doing, it isn't at all clear from the story. And the Dole decision, which features a strong O'Connor dissent, is perhaps a bit shaky -- or so I optimistically hope.

ANOTHER UPDATE: Reader Tom Hynes notes this report that suggests Congress is acting indirectly, and probably constitutionally:

If a state opted not to comply, its driver's licenses, even those issued to citizens and legal residents, would not be recognized as valid for federal identification purposes — such as boarding an airplane or opening a bank account. As a result, most states would probably adopt the new standards.

That would avoid the "commandeering" problem, if that's all the bill does.