by Kendra Sena*
Updated on September 25, 2019.
In June 2019, New York passed the Driver’s License Access and Privacy Act (Green Light NY), a law that would permit undocumented New Yorkers to apply for a state driver’s license. The law is set to go into effect in December 2019.
In New York, most Department of Motor Vehicles (DMV) offices are not operated by the state agency directly; instead, independently elected county clerks act as agents of the DMV, and are responsible for issuing driver’s licenses in most counties. But many county clerks have expressed their intent to defy the law and refuse to issue licenses to newly eligible immigrants.2 The consequences to the clerks of refusing to administer the law are potentially severe: the New York State Constitution gives the governor the authority to remove an elected county clerk from office,3 though the power has not been invoked since 1932.4
A few weeks after the Green Light NY bill was signed into law, Erie County Clerk Michael Kearns filed a suit in federal court challenging the law as unconstitutional.5 Shortly thereafter, Rensselaer County Clerk Frank Merola filed a similar suit.6 In late August, Monroe County Executive Cheryl Dinolfo filed a third suit.7 Although fourteen states plus Washington, D.C., and Puerto Rico have laws to issue driver’s licenses regardless of immigration status,8 the lawsuits in New York mark the first time local officials have sued a state for issuing driver’s licenses to undocumented immigrants.
The lawsuits claim that the Green Light NY law is preempted by federal law. Under the Supremacy Clause of the U.S. Constitution, when there is a conflict between a state law and a federal law, the federal law overrides the state law. There are two types of preemption: express and implied. Express preemption occurs when a federal law explicitly states that it supersedes state law. Implied preemption occurs when, despite there being no explicit preemption, either:
- state law and federal law are in conflict;
- state law frustrates federal law; or
- the federal law and regulation in an area is so comprehensive as to occupy the field.
The Monroe suit makes an additional claim that the Green Light NY law violates the Equal Protection Clause of the U.S. and New York State Constitutions. The Equal Protection Clause guarantees that the government will not unfairly discriminate against classes of people when it passes or enforces laws. To satisfy the Equal Protection Clause, a government classification must be supported by sufficient justification. Depending on the type of classification, courts will apply one of three types of review: strict scrutiny, intermediate scrutiny, or rational basis review. A law that fails to pass equal protection review is unconstitutional.
Each suit asks the court to rule that the Green Light NY law is unconstitutional and to stop its implementation. The following sections explain the specific claims the counties make.
Claims and Analyses
Summary and Analysis: Neither Congress nor the federal courts has settled on a single definition of “harboring.” In the Second Circuit (the federal jurisdiction that includes New York), there are three elements that must be proved: (1) the noncitizen is unlawfully present in the U.S.; (2) the defendant knew or recklessly disregarded the status of the unlawfully present person; and (3) the defendant took actions that both helped an unlawfully present person to remain in the U.S. and prevented authorities from detecting the person’s presence.9
Most prosecution for harboring arises in the employment context, though mere employment of undocumented workers is not enough. Courts have found employers guilty of harboring when they employ undocumented workers and take affirmative actions that shield the person from detection and make it easier for them to remain in the U.S. For example, the Second Circuit found harboring when an employer induced a worker to falsify work authorization documents and to change her name when the employer was under investigation.0 Litigation also arises in the housing context when, in addition to providing shelter, a person takes actions that help an undocumented person to remain in the U.S. and prevent authorities from detecting them. The Second Circuit found a person liable for harboring when they maintained several houses to provide shelter for large numbers of undocumented people, provided transportation for them to and from work, and helped arrange sham marriages.
The clerks argue that by providing driver’s licenses to people who are in the U.S. without authorization, the Green Light NY Law helps people who are unlawfully present in the U.S. to remain in the U.S. And because the law bars the DMV from disclosing applicants’ records without a judicial warrant, the counties argue that the law shields unlawfully present people from detection.
In its motion to dismiss the Kearns complaint, the State responds that (1) the Green Light NY law forbids the counties from asking an applicant about their immigration status, and because citizens and lawfully present noncitizens are also eligible for standard (not for federal purposes) licenses under the Green Light NY law, the counties cannot assume that all applicants are undocumented; (2) the issuance of a driver’s license is not the kind of conduct prohibited by federal law; even if a driver’s license facilitates a noncitizen’s continued unlawful presence in the U.S., it is not done specifically to prevent immigration authorities from detecting the noncitizen; (3) the Green Light NY law protects certain documents from disclosure, but the federal law is meant to address harboring of people not documents; and (4) there is no credible threat of prosecution as no official in any other state that issues driver’s licenses to undocumented residents has ever been prosecuted under the harboring statute.
Summary and Analysis: Federal law makes it unlawful to knowingly employ unauthorized workers. To be authorized to work, a person must have a valid social security number or other work authorization issued by the federal government. Many types of immigrants are eligible for work authorization, including asylees and refugees, beneficiaries of Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS), some student-visa holders, and many others. Undocumented people are not generally eligible for work authorization. Employers who violate the law may be subject to fines and criminal prosecution.
The U.S. Supreme Court has previously struck down government action that frustrates this law. In Hoffman Plastics, the Supreme Court reversed an administrative award of back pay for unauthorized workers who had been unlawfully fired for union activity.3 Back pay—wages that workers would have earned had they not been unlawfully terminated— is a remedy typically available to people with work authorization. But the Court reasoned that without work authorization the workers were “unavailable” to work, and an award of back pay would be inconsistent with the federal laws that aim to curb the employment of unauthorized workers.4 The Court relied on its analysis in a prior case that held that unauthorized workers were not eligible to be reinstated after they were wrongfully terminated. 5 In Arizona v. U.S. the U.S. Supreme Court struck down a state law that aimed to impose criminal sanctions on unauthorized workers for seeking employment—a consequence not imposed by federal law. Reasoning that the federal law intentionally avoided imposing criminal penalties on unauthorized workers, choosing instead to sanction employers, the Court held that the “state law to the contrary is an obstacle to the regulatory system Congress chose.” 6
The counties claim that the Green Light NY law intentionally interferes with federal efforts to combat the employment of unauthorized workers. In justifying the proposed law extending driving privileges to undocumented New Yorkers, bill sponsors in the Senate and Assembly noted that undocumented people need driver’s licenses in order to get to and from work.7 But because undocumented people are not generally eligible for work authorization, the counties say the New York law encourages the unlawful employment of unauthorized workers and frustrates federal law.
In its motion to dismiss the Kearns complaint, the State responds that the federal law deliberately regulates the conduct of employers rather than the workers themselves or others who facilitate the unlawful employment. Because the Green Light NY law does not regulate any employer conduct, permit employers to hire workers, or confer the license holders with work authorization, the law does not conflict with federal prohibitions on employment of unauthorized workers.
Summary and Analysis: In 1996, Congress passed two laws under which state and local governments may not prohibit communication with the federal government about the immigration status of any person, 8 U.S.C. § 1644 and 8 U.S.C. § 1373. Shortly after the laws were enacted, the City of New York challenged the validity of the laws under the anticommandeering principles of the Tenth Amendment, which prohibit the federal government from compelling states to adopt or enforce federal laws. The city was defending its long-standing executive order that prohibited New York City officials from sharing immigration-status information with federal immigration authorities. The Second Circuit ruled against the city, upholding the federal laws as constitutional. The court reasoned that while the federal government could not compel state and local governments take certain actions to administer federal programs, it was constitutional for the federal government to prohibit states from taking certain actions that would frustrate federal programs.8 In response, the city changed its order; rather than prohibit the sharing of immigration-status information, the new order (which is still in effect) prohibits the gathering of immigration-related information except in limited circumstances.9
But a recent U.S. Supreme Court case has done away with the distinction drawn by the Second Circuit. In Murphy v. NCAA, the Supreme Court held unconstitutional a federal statute that prohibited states from authorizing sports gambling.20 The Supreme Court reasoned that the distinction between an attempt to compel a state to act or to prohibit a state from acting is an empty one; any attempt to dictate what state legislatures may and may not do is a violation of the anticommandeering principles of the Tenth Amendment.2 In light of this ruling, one federal court in New York has ruled that 8 U.S.C. § 1373 is unconstitutional.22 The Second Circuit has not ruled on provisions that prohibit the gathering of immigration-related information, nor has it considered whether 8 U.S.C. § 1644 and 8 U.S.C. § 1373 will survive in light of Murphy.
The Green Light NY law prohibits the disclosure of any records or information maintained by the state or local agent to immigration enforcement authorities absent a court order or judicial warrant. The county claims that this information-sharing prohibition conflicts with the federal laws.
In its motion to dismiss the Kearns complaint,23 the State responds that (1) because federal law grants states the choice as to whether to report otherwise protected personal information to other state and federal agencies, the Green Light NY law is an exercise of the State’s discretion to decide when such permissive disclosures are appropriate; (2) federal law does not create any affirmative obligations to disclose immigration status information; and (3) because the Green Light NY law prohibits state and local agents from inquiring about the immigration status of an applicant for a non-federal-use driver’s license, government agents will not have any relevant immigration-status information to communicate at all.
Summary and Analysis: Federal law makes it a crime for a noncitizen to vote “in any election held solely or in part for the purpose of electing a candidate for federal office.”24 A noncitizen who votes in a federal election can be fined, imprisoned, or removed from the United States—even if they did not know they were ineligible to vote.25 The county argues that because the Green Light NY law permits people who are ineligible to vote in a federal election to obtain a driver’s license, and because a driver’s license is sufficient documentation to register to vote in New York, that the state law is preempted by the federal law.
The State has yet to respond to this argument, but may reply that (1) the issuance of a driver’s license is fairly attenuated to the act of voting; (2) all states routinely issue driver’s licenses to people who are ineligible to vote in federal elections, including people under the age of 18, lawful permanent residents (“Green Card” holders) and other noncitizens, and some people who have been convicted of a felony; and (3) the federal statute at issue criminalizes the actions of a noncitizen voter, not the actions of a state or local government that erroneously accepted a voter registration or permitted an ineligible voter to cast a vote in a federal election.
Summary and Analysis: A state or local law is preempted when the federal law and regulation in an area is so comprehensive as to occupy the field. Courts have found field preemption in areas where there is a clear and dominant interest in national uniformity, such as nuclear safety regulation,26 or where Congress has enacted a comprehensive statutory framework that demonstrates its intent to occupy a field, such as with “alien registration.”27 This means that even complementary state or local laws are preempted. For example, the U.S. Supreme Court struck down an Arizona statute that made it a crime under state law for an immigrant to fail to carry their “alien registration document” as required by federal law. Although the state statute mirrored the federal statute in that it imposed a penalty for failing to carry the document, the Court reasoned that “[w]here Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible.”28 But not all state or local laws that have to do with immigrants are field-preempted. The U.S. Supreme Court has upheld state laws that affect immigrants but do not interfere with the comprehensive scheme laid out by federal law. For example, the Court found that a state law that revoked an employer’s business license for hiring unauthorized workers was not preempted by federal law.29
The counties argue that the federal government has exclusive authority over the field of immigration law, and that the Green Light NY law is therefore preempted.
In its motion to dismiss the Kearns complaint, the State responds that (1) only the federal government may bring a claim based on the supremacy clause in the immigration context; (2) the issuance of driver’s licenses is not within the field of immigration regulation exclusively governed by federal law; (3) the State has broad authority to govern matters of public safety, including issuing driver’s licenses, even if those laws have some effect on immigration; and (4) federal law recognizes that states are permitted to issue driver’s licenses without regard to immigration status.
Summary and Analysis: The Equal Protection Clause guarantees that the government will not unfairly discriminate against classes of people when it passes or enforces laws. The Equal Protection Clause is applicable when a government action unjustifiably burdens or benefits one group of people but not other similarly situated people. That is not to say that the government may not make distinctions between classes of people; a government classification is lawful so long as it is supported by sufficient justification. Depending on the type of classification, courts will apply one of three types of review: strict scrutiny, intermediate scrutiny, or rational basis review.
The most stringent type of review, strict scrutiny, will apply when the law in question relates to a fundamental right or a suspect classification. Fundamental rights include the right to vote, the right to move freely between the states, and the right to marry. Suspect classifications include race, national origin, religion, and alienage. A law that limits a fundamental right or that involves a suspect classification must pass strict scrutiny; the law must further a “compelling governmental interest,” and must be narrowly tailored to achieve that interest. When courts apply strict scrutiny, they almost always strike down the government action being challenged. A court will use intermediate scrutiny to evaluate a law that discriminates by sex or gender. To pass intermediate scrutiny, the law must be substantially related to an important governmental interest. For most all other classifications, courts will use the lesser rational basis standard of review, under which the state need only show that the classification bears a rational connection to a legitimate state interest. Laws that are subject to rational basis review almost always survive challenge.
The county argues that the Green Light NY law violates the Equal Protection Clause because it treats undocumented immigrants better than it treats U.S. citizens and lawful residents. Under the Green Light NY law, people with social security numbers are required to provide their social security number to apply for a driver’s license. All U.S. citizens have social security numbers, and so do some, but not all, noncitizens. Noncitizens without social security numbers may submit an affidavit stating that they have not been issued a social security number, and must also provide a valid foreign passport, consular identification document, or foreign driver’s license to be eligible for a standard (not for federal purposes) driver’s license.
The county argues that the Green Light NY law “requires less intrusive and less reliable proof of identity from” undocumented immigrants who don’t have social security numbers than from citizens and immigrants with social security numbers. Because New York shares driver’s license data with state and federal agencies, the county claims that those who have submitted their social security numbers will have their identities shared while those without social security numbers will have their identities shielded.
The State has yet to reply to this argument, but may offer some variation on three replies. First, the State may say that equal protection is irrelevant here because the classes (people with and without social security numbers) are not similarly situated. Under federal law, the state cannot issue the same kinds of driver’s licenses to people who have social security numbers and people who do not. People with different kinds of licenses are not similarly situated. Second, the State may argue that equal protection is irrelevant because there is no differential treatment; all driver’s licenses and associated identifying information are a part of the same database that is shared with state and federal agencies. Finally, the State may say that even if equal protection does apply, the state satisfies the low burden of rational basis review; the heightened scrutiny required for alienage discrimination does not apply where a party alleges preferential treatment for immigrants.
The Government Law Center publishes explainers—short policy papers—designed to help policymakers and others understand the complex laws that apply to state and local governments’ choices about immigration policy. Each explainer briefly reviews the law in a specific area, and provides links to further resources. For more information on driver’s licenses for undocumented immigrants, and other issues related to state and local governments and immigration law, see the Government Law Center’s explainer series, available at: albanylaw.edu/glc/immigration.
* Kendra Sena is the Senior Staff Attorney at the Government Law Center at Albany Law School.
 In 51 of the state’s 62 counties, the county clerk serves as an agent of the Commissioner of Motor Vehicles and is responsible for operating the Department of Motor Vehicles office and issuing driver’s licenses. See N.Y.S. Vehicle and Traffic Law § 205. Excepted are the clerks of the counties of Rockland, Albany, Westchester, Suffolk, Nassau, Onondaga, Bronx, Kings, Queens, Richmond, and New York.
2 Christina Goldbaum, “Rebellion by County Clerks Over N.Y. Licenses for Undocumented Immigrants,” The New York Times, June 21, 2019, https://www.nytimes.com/2019/06/21/nyregion/drivers-licenses-undocumented-ny.html.
3 N.Y. Const. art. XIII, § 13 states, in part: “The governor may remove any elective sheriff, county clerk, district attorney or register within the term for which he or she shall have been elected; but before so doing the governor shall give to such officer a copy of the charges against him or her and an opportunity of being heard in his or her defense.”
4 The only governor to invoke the power to remove an independently elected official was Franklin D. Roosevelt who, in 1932, removed New York County Sheriff Thomas M. “Tin Box” Farley from office as part of a Tammany Hall scandal. “Farley Is Removed; Unexplained Funds Sole Basis of Action; Roosevelt Rules Sheriff Failed to Meet High Standard Set for Public Officials,” The New York Times, Feb. 25, 1932, www.nytimes.com/1932/02/25/archives/farley-is-removed-unexplained-funds-sole-basis-of-action-roosevelt.html.
5 Kearns v. Cuomo, et al., No. 19 cv 902 (W.D.N.Y. filed Jul. 8, 2019).
6 Merola v. Cuomo, et al., No. 19 cv 899 (N.D.N.Y. filed Jul. 24, 2019).
7 County of Monroe, et al., v. Cuomo, et al., No. 19 cv ___ (W.D.N.Y. filed Aug. 29, 2019).
8 National Immigration Law Center, “State Laws Providing Access to Driver’s Licenses or Cards, Regardless of Immigration Status,” (August 2019), https://www.nilc.org/issues/drivers-licenses/state-laws-providing-dl-access/.
9 See U.S. v. Kim, 193 F.3d 567 (2d Cir. 1999) (holding that harboring “encompasses conduct tending substantially to facilitate an alien’s remaining in the U.S. illegally and to prevent government authorities from detecting [the immigrant’s] unlawful presence”) citing U.S. v. Lopez, 521 F.2d 437 (2d Cir. 1975), cert denied 423 U.S. 995 (1975)).
 See U.S. v. Lopez, 521 F.2d 437 (2d Cir. 1975), cert denied 423 U.S. 995 (1975).
2 The Kearns complaint refers to the Immigration Control and Reform Act of 1986, the parts of which referring to the employment of unauthorized workers are codified in 8 U.S.C. § 1324a.
3 See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).
5 See Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984).
6 See Arizona v. United States, 567 U.S. 387, 389 (2012).
7 See A.B. 3675, 2019-20 Leg. Sess., Sponsor’s memorandum, (NY 2019), available at https://www.nysenate.gov/legislation/bills/2019/A3675 ; S.B. 1747B, 2019-20 Leg. Sess., Sponsor’s memorandum (NY 2019), available at https://www.nysenate.gov/legislation/bills/2019/s1747.
8 See New York v. United States DOJ, 343 F. Supp. 3d 213 (S.D.N.Y. 2018).
9 See N.Y.C., N.Y., Exec. Order No. 41, ss.1-2 (Sept. 17, 2003), https://www1.nyc.gov/assets/immigrants/downloads/pdf/eo-41.pdf.
20 See Murphy v. NCAA, 138 S. Ct. 1461 (2018).
2 Id. at 1475.
22 See New York v. U.S. Dep’t of Justice, 343 F. Supp. 3d 213, 244 (S.D.N.Y. 2019).
23 Although the Kearns complaint does not reference these statutes, the State’s motion to dismiss addresses the issue. See Motion to dismiss at n.9, Kearns v. Cuomo, et al. No. 19 cv 902 (W.D.N.Y. filed Jul. 8, 2019).
24 18 USC § 611(a).
25 See Fitzpatrick v. Sessions, No. 15-2204 & 16-1864 (7th Cir. 2017).
26 See Va. Uranium, Inc. v. Warren, 587 U.S. _ (2019).
27 See Arizona v. United States, 567 U.S. 387 (2012).
29 See Chamber of Commerce v. Whiting, 563 U.S. 582, 587 (2011).