Abstract
Excerpted From: L. Darnell Weeden, Undocumented Immigrant Residents Have a Limited Constitutional Right to a Limited Official Driver's License, 66 Howard Law Journal 643 (Spring, 2023) (182 Footnotes) (Full Document Requested)
The issue to be addressed is whether undocumented resident immigrants who entered the United States illegally should be granted a limited suspect classification when seeking a state driver's license. Steven A. Camarota, the director of research at the Center for Immigration Studies, and Karen Zeigler, a demographer at the Center for Immigration Studies, “estimate that in January 2022, there were 11.35 million illegal immigrants in the country-- a 1.13 million increase over the 10.22 million in January 2021. Our preliminary estimate for February of this year is 11.46 million.” A continuing heated immigration debate involves whether undocumented immigrants should be allowed official driving privileges under state law.
Giving undocumented immigrants access to an official driver's license is no ordinary matter in the immigration context because undocumented immigrants “need a law legalizing their driving privileges in order to live a meaningful life and complete everyday tasks, such as driving to work or school.” America's illegal immigration hot-button issue is now directly linked to the privilege of driving. Many of the roughly speaking twelve million illegal immigrants who already reside in the United States actually drive without an official driver's license or receive appropriately recognized teaching.
Supporters of granting access to state-issued driver's licenses to illegal immigrants commonly refer to the equal protection language in the Fourteenth Amendment of the U.S. Constitution, which requires a state to deliver equal protection to all people who reside in the state and is not limited to citizens of a state. On the other hand, those who do not support granting access to official driver's licenses by a state to illegal immigrants contend that granting state-issued driver's licenses grants underserved legal standing to people who have knowingly violated U.S. immigration law. Some who object to granting access to driver's licenses to illegal immigrants believe that granting them access demoralizes immigration laws by unfairly increasing the power of illegal immigrants with state-issued driver's licenses.
Undocumented immigrants, also known as illegal immigrants, generally are not recognized as a suspect class under the Equal Protection Clause. From equal protection, it is generally accepted that an undocumented immigrant does not have the same rights as a lawful resident alien. Nevertheless, I support the argument that an undocumented immigrant with an established residency in a state should be granted an opportunity to acquire a driver's license in order to help achieve the goal of promoting public safety. When a state categorically denies an undocumented immigrant the public safety benefit of a driver's license, such a denial places public safety at such an unacceptable increase of harm that a categorical denial is improper. I believe a state should be required to show either a substantial or compelling justification when it categorically denies an undocumented immigrant residing in the state access to a driver's license. I think a substantial or compelling justification is necessary to overcome a presumption of intolerable hostility toward undocumented resident immigrants seeking a driver's license.
It is my position that the Supreme Court has recognized that the Constitution's Fourteenth Amendment Equal Protection Clause applies the equality principle to undocumented resident immigrants when the lack of equality creates a systemic underclass of undocumented immigrants in a state. The Court has rejected the claim that undocumented immigrants are categorically entitled to be recognized as a suspect class. However, I believe undocumented immigrants residing in a state should be treated as a suspect or a quasi-suspect class when they are denied an opportunity to acquire a driver's license because such a denial substantially increases the risk that the undocumented immigrant will become members of a permanent underclass unable to take care of the health of her child adequately.
Undocumented immigrants who are residents of the state in which they live should not be denied the generally available benefit of a driver's license because such a denial is very poor public policy. Many state lawmakers promote good public policy by making the case that granting undocumented immigrants access to a driver's license advances the improved safety for all drivers and foot travelers. “A driver's license for undocumented immigrants would allow foreigners to cope more practically and safely with their daily activities. Things like taking their children to school and buying an insurance policy for their car would become easier and safer.” The categorical driver's license denial approach is poor public policy because that policy undermines traffic safety by making it unnecessarily burdensome for an undocumented immigrant driver to become a safe, licensed driver. “Immigrants who do not have the legal documents to reside in the United States can face significant restrictions. One of these is getting an identification card or a driver's license.”
Some contend “that the entire field of immigration law is preempted by the United States Constitution and is the exclusive province of the federal government.” Others contend that this comprehensive declaration of immigration preemption is not supported by the Court's reasoning in Plyler v. Doe. An argument can be made that Plyler does not allow a state statute to be upheld if it advances illegitimate undocumented immigrant hostility. I agree with the statement that the Court's scrutiny evaluation in Plyler of how to apply the Equal Protection Clause to review laws that discriminate on the basis of undocumented alienage was a problematic treatment of the suspect classification issue. “The Supreme Court stated in Plyler that it was applying rational basis review to the case. But Plyler's holding seemed to actually apply a form of heightened review to undocumented immigrants as a class.”
Simply put, I maintain immigrant hostility is not a legitimate state goal under the rationale of United States v. Carolene Products Co. In footnote four of Carolene Products, the Court stated that it was predisposed to applying a form of heightened judicial scrutiny to regulations or governmental policies that targeted for discrimination “discrete and insular minorities.” I believe the Court should recognize undocumented immigrant residents living in the United States (“U.S.”) who are categorically denied a driver's license as discrete insular minorities entitled to some degree of suspect classification from the judicial branch.
“The reality is that undocumented immigrants are going to drive in this country whether or not they have a valid driver's license.” As a nation, we have a duty to provide safety on our roads while requiring drivers to have adequate insurance coverage. Any driver's license benefit to an undocumented immigrant is not properly viewed as a reward for entering America illegally. The undocumented immigrant with a driver's license can drive legally, and the license also may serve as appropriate identification. A driver's license does not grant an undocumented improved status under federal immigration law. A state driver's license will probably make it easier for the U.S. government to locate an undocumented immigrant for appropriate federal processing. A good reason for rejecting undocumented immigrant hostility and licensing undocumented immigrants is that it “will boost the safety of everyone else on the roadway. It is better to train these individuals to properly drive and know the rules of the road than to continue turning a blind eye in order to punish them for entering the country illegally.”
Part II of this article will discuss the widespread economic, societal, and human rights implications involved in a state's refusal to issue a driver's license to an undocumented resident immigrant. Part III provides an analysis of cases important to the undocumented immigrant driver's license issue. Part IV, in the conclusion of this article, asserts that a state's action in denying an undocumented resident immigrant a driver's license should trigger suspect treatment because family integrity is protected both as a fundamental substantive due process right and is pursuant to the equal protection principle against undocumented immigrant hostility.
[. . .]
A parent's right to care for their children is “perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court.” Because an undocumented resident immigrant's right as a parent to care for their children is a fundamental liberty interest, a state violates substantive due process when it denies that right without a compelling justification.
Under substantive due process scrutiny, “[t]he right to family integrity must be balanced against the state's interests in protecting the health, safety, and welfare of children.” Because a state's denial of an official driver's license to otherwise qualified undocumented resident immigrants is an obstacle to protecting the health and safety of the child, the substantive due process family integrity liberty interest is violated. Reliable evidence demonstrates that the benefit in all fifty states of granting access to a driver's license to all immigrant residents living in that state, regardless of immigration status, includes advancing both road safety and the value of family integrity. Because the denial of a state resident access to a driver's license based on immigration status make the public roadways less safe while making it more difficult for a parent to take care of a child's health and safety needs; the lack of a driver's license violates the substantive due process right of family integrity. I believe both the substantive due process family integrity rationale as well as human rights reasoning support the position that granting driver's licenses to undocumented resident immigrants is humane and good public policy. The granting driver's license approach to resident immigrants is necessary to promote human rights and to avoid a situation where an undocumented parent lacks the ability to get lifesaving medical treatment for her children living in her household in the U.S.
It is my opinion the approximately twelve million undocumented resident immigrants living in the United States should be treated as discrete and insular minorities when they are seeking a state-approved driver's license. Denying undocumented immigrants access to a driver's license is unacceptable undocumented immigrant hostility. In my view, immigrant hostility is not a legitimate state goal under the reasoning of United States v. Carolene Products Co. In footnote four of United States v. Carolene Products, the Court stated that it was predisposed to applying a form of heightened judicial scrutiny to regulations or governmental policies that targeted for discrimination “discrete and insular minorities.” I believe the Court should recognize undocumented immigrants living in the United States denied a driver's license as discrete insular minorities entitled to a limited suspect classification from the Court in order to equally protect the family integrity of all residents in a state.
King Professor of Law, Thurgood Marshall School of Law, Texas Southern University, B.A., J.D., University of Mississippi.
