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Court Supports New York’s Green Light Law

The Jamestown office of the Department of Motor Vehicles is pictured on West Third Street. P-J file photo

The U.S. Department of Justice is unsurprisingly backing a court challenge to New York’s Green Light Law.

Federal officials filed brief in the case filed by Frank Merola, Rensselaer county clerk, over the Driver’s License Access and Privacy Act. The state law is supposed to go into effect Dec. 14 and would allow immigrants without legal status in the United States to apply for a standard, non-commercial driver’s license as is available to citizens and those with legal presence in the country.

Those asking for a license would need an unexpired passport from the applicant’s country of origin, an unexpired identification document from the applicant’s country of citizenship or a valid foreign driver’s license that includes a photo of the applicant. The license would have to be either unexpired or have expired within the last two years. Applicants also have to show they live in New York state, which can be done with a utility bill. A Social Security number is not needed, but applicants need to sign a form saying they have never received one.

JUSTICE DEPT. BRIEF

In addition to Merola’s lawsuit, there are two other legal challenges to the Green Light Law. Merola’s claim in federal court argues that the law’s prohibition on sharing information about driver’s license holders with the federal government violates federal law that require disclosure.

State officials have raised several arguments in their motions to have Merola’s case dismissed, including that sections of federal law are unconstitutional and that the Driver’s License Access and Privacy Act doesn’t conflict with the state laws. The Department of Justice brief, filed by Joseph H. Hunt, assistant attorney general, Brigham Bowen, assistant branch director, and Charles E.T. Roberts, a Department of Justice trial lawyer, asks the federal court to rule first on any claims that don’t involve the federal questions before making arguments on behalf of the constitutionality of the federal laws, saying they are tailored to be permissible under the 10th amendment of the U.S. Constitution.

“If, however, the court reaches the constitutional question, it should uphold Sections 1373 and 1644,” the Justice Department argues. “These statutes do not commandeer states and localities to regulate or administer a federal regulatory scheme. Rather, they are modest information-sharing provisions that expressly preempt state and local regulations that obstruct federal enforcement of the immigration laws against individual aliens.”

Justice Department officials wrote they do believe there is a significant constitutional question whether the state law conflicts with federal law because the Driver’s License Access and Privacy Act, in the eyes of federal officials, is written to make it harder for federal immigration officials to enforce federal law. Federal officials note that the Driver’s License Access and Privacy Act singles out ICE and Customs and Border Protection agencies by name, mandates that an agency notify an individual of a federal records request within three days even if the federal request is signed by an Article 3 judge, lacks written exceptions and requires state officials to provide notification of federal information requests even when that notification would endanger law enforcement personnel or the public.

Federal officials also argue that courts have upheld the constitutionality of Sections 1373 and 1644 in the past, arguing that even the Supreme Court has held in the past that federal reporting requirements tailored correctly do not violate the state’s rights incorporated in the 10th amendment.

“Indeed, the legislative history of Section 1373 indicates the statute was intended to counteract passive resistance to sharing information,” the Department of Justice argues. “As relevant here, the INA provides that a federal immigration officer ‘shall have power without warrant … to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.’ The INA also provides that certain classes of aliens, including certain criminal aliens, shall be removed from the United States upon the order of the Attorney General or the Secretary of Homeland Security. Simply put, federal officials cannot carry out these statutory duties without access to necessary information.”