Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues
Released: 2014-09-03T00:00:00

One facet of the broader debate over aliens who are present in the United States in violation of federal immigration law has been their eligibility for driver's licenses and other forms of government-issued identification documents (IDs). The issuance of driver's licenses has historically been considered a state matter, and states have taken a variety of approaches here. Some states, responding to concerns about national security, the rule of law, or the presence of "illegal aliens" within their jurisdiction, have adopted measures that directly or indirectly bar such aliens from obtaining driver's licenses and other state-issued ID. In contrast, other states, motivated by concerns related to community policing or the welfare of immigrant communities, have adopted measures that permit unlawfully present aliens to obtain driver's licenses and other ID. While these licenses may—or may not—be visually distinct from the licenses issued to U.S. citizens and lawfully present aliens, some states do not purport to restrict the license's use for ID purposes, a widely recognized function of driver's licenses. Yet other states, seeking to promote traffic safety by screening drivers, but not wishing to issue driver's licenses to unlawfully present aliens, have adopted measures that permit these aliens to obtain "Certificates for Driving" (CFDs) or "Driving Privilege Cards" (DPCs), but not driver's licenses. These CFDs or DPCs note, on their face, that they are valid for driving, but not for purposes of identification. There has been similar divergence in terms of whether local governments provide alternate forms of ID to unlawfully present aliens, and in state and local approaches to recognizing consular IDs (e.g., Mexico's matrícula consular).

The federal government has generally not intruded on state control over the issuance of driver's licenses, although the REAL ID Act of 2005 will, when fully implemented, bar federal agencies from accepting, "for any official purpose," licenses or ID cards issued by states that do not meet specific requirements. Congress also regulates immigration, which some have claimed means that state measures regarding the issuance of driver's licenses to unlawfully present aliens are preempted. In particular, Congress has enacted legislation that restricts unlawfully present aliens' eligibility for state and local public benefits , a term that has been defined to include certain state-issued licenses, as well as "assistance" provided by state agencies or state funds.

This report provides an overview of key legal issues raised by state laws regarding the denial or issuance of driver's licenses and other forms of ID to unlawfully present aliens. It also addresses the legal issues raised by local governments issuing ID cards to unlawfully present aliens, as well as by state and local approaches to recognizing foreign-issued ID documents.

Basic Legal Principles

State measures that would deny or provide driver's licenses and other forms of government-issued ID to unlawfully present aliens have been challenged on various grounds. These grounds can vary depending upon the specific statute or practice in question. However, the grounds most commonly asserted appear to be violations of the Equal Protection and Supremacy Clauses of the U.S. Constitution. Thus, these provisions are the focus of discussion in this report, and the following paragraphs provide an overview of the basic principles implicated in discussions of equal protection and preemption.

Equal Protection

The Equal Protection Clause of the Fourteenth Amendment bars states from "deny[ing] to any person within [their] jurisdiction the equal protection of the laws." Aliens have been found to be encompassed by the Fourteenth Amendment's usage of "person." As a result, measures that would treat aliens differently than citizens may be subject to challenge on equal protection grounds. The level of scrutiny applied by the courts in reviewing such measures frequently determines whether the measure is upheld or struck down. With "rational basis review," the challenged measure will generally be upheld if it is a rational means of promoting a legitimate government objective. The measure is "presumed constitutional," and those challenging the law have the burden of negating all possible rational justifications for the classification. In contrast, with "strict scrutiny," the challenged measure will be upheld only if the government can demonstrate that the measure is necessary to achieve a compelling interest and is narrowly tailored for that purpose. Courts have also applied other tests, falling between rational basis review and strict scrutiny, in some cases due to the persons or rights affected by the measure.

The level of scrutiny applied to measures that classify on the basis of alienage depends, in part, on whether the measure is a federal one, or a state or local one. Because Congress's plenary power over immigration permits it to enact measures as to aliens that would be unconstitutional if applied to citizens, federal classifications based on alienage are subject to rational basis review, and have generally been upheld. For example, in its 1976 decision in Mathews v. Diaz , the Supreme Court upheld a federal law that barred lawful permanent residents (LPRs) who had not resided in the United States for five years from enrolling in Medicare Part B, because it viewed the measure as a valid exercise of the federal government's authority to regulate the entry and residence of aliens, not as "irrational." State and local measures, in contrast, have generally been subject to strict scrutiny, unless (1) the restrictions involve "political and governmental functions," or (2) Congress has "by uniform rule prescribed what it believes to be appropriate standards for the treatment of an alien subclass."

However, it is important to note that the Supreme Court decisions applying strict scrutiny to state or local measures that treat aliens differently than citizens all involved LPRs, and the Supreme Court has expressly noted that "undocumented status is not irrelevant to any proper legislative goal." In the 1982 decision in which it stated this, Plyler v. Doe , the Court applied what has since come to be characterized as "intermediate scrutiny" in striking down a Texas statute that prohibited the use of state funds to provide elementary and secondary education to children who were not "legally admitted" to the United States. However, later courts and commentators have suggested the heightened level of scrutiny applied in Plyler reflects the facts and circumstances of the case—which involved a law that a majority of the Court viewed as depriving "minor children" of a "basic education" —and is not generally applicable to classifications affecting unlawfully present aliens.

The Supreme Court has recognized a fundamental right to interstate travel, the deprivation of which generally results in the application of strict scrutiny by the courts when assessing the permissibility of the measure. However, courts have also taken the view that restrictions on a particular mode of travel (e.g., driving) do not necessarily constitute a deprivation of the right to travel. The ability to obtain a driver's license or other state-issued identification has not been recognized as a fundamental right.

Preemption

The doctrine of preemption, in turn, derives from the Supremacy Clause of the U.S. Constitution, which establishes that federal law, treaties, and the Constitution itself are "the supreme Law of the Land, ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." Thus, one essential aspect of the federal structure of government is that states can be precluded from taking actions that would otherwise be within their authority if federal law would be thwarted thereby.

Because the Constitution entrusts Congress with the power to regulate immigration, state or local measures that purport to regulate immigration—by determining which aliens may enter or remain in the United States, or the terms of their continued presence—are, per se, preempted, regardless of whether Congress has legislated on the matter. Other measures, which affect aliens, but do not constitute regulation of immigration, could also be found to be preempted, depending upon the scope of any congressional enactments. Specifically, federal statutes may preempt state and local measures in one of three ways:

the statute expressly indicates its preemptive intent ( express preemption ); a court concludes that Congress intended to occupy the regulatory field, thereby implicitly precluding state or local action in that area ( field preemption ); or state or local action directly conflicts with or otherwise frustrates the purpose of the federal scheme ( conflict preemption ).

However, state action in fields that have traditionally been subject to state regulation may be accorded a presumption against preemption whenever Congress legislates in the field. States have historically regulated the issuance of driver's licenses, and at least one court has suggested that a presumption against preemption may apply in cases involving restrictions upon the issuance of driver's licenses to unlawfully present aliens.

Two federal statutes are generally also noted, along with the federal government's power to regulate immigration, in discussions of whether state measures regarding unlawfully present aliens' eligibility for driver's licenses are preempted. The first of these statutes, the REAL ID Act of 2005, augmented standards for federal agencies' acceptance of certain state driver's licenses and other forms of identification, including by establishing new minimum standards that states must satisfy if the driver's licenses or ID cards they issue are to be accepted by federal agencies for any "official purpose." Notably, in order for a state-issued ID to be accepted by federal agencies for an official purpose, the state issuing the ID must require valid documentary evidence of an applicant's legal status. Specifically, evidence generally must be submitted that the applicant falls under one of the following nine categories:

is a citizen or national of the United States; is an alien lawfully admitted for permanent or temporary residence in the United States; has conditional permanent resident status in the United States; has an approved application for asylum in the United States or has entered into the United States in refugee status; has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States; has a pending application for asylum in the United States; has a pending or approved application for temporary protected status in the United States; has approved deferred action status; or has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.

In satisfying the REAL ID Act's standards, a state may only issue a temporary driver's license or ID card to an applicant who provides documentation that he or she falls under one of the latter five categories listed above. This license or ID must either (1) be valid only for the period of time that the alien is authorized to stay in the United States, or (2) expire within one year of its issuance, if the alien is authorized to stay within the United States for an indefinite period.

The initial deadline for compliance with REAL ID Act requirements was May 11, 2008—three years after the act's date of enactment. However, the act permits the Secretary of the Department of Homeland Security (DHS) to extend the deadline for a state to comply with the act's minimum standard requirements, provided that the state has provided DHS with "an adequate justification for noncompliance." The Secretary of DHS has extended this deadline on a few occasions, and has also deferred enforcement of the act with respect to federal recognition of non-compliant state IDs. As of the date of this report, a majority of states and territories have either been deemed compliant with the act's requirements by DHS or have been granted an extension to achieve compliance. A few states and territories do not currently have an extension in effect, and are not deemed to be in compliance with the act. On December 20, 2013, DHS announced a timeline for the implementation of the act's requirements through a "phased enforcement plan," under which federal agencies shall begin restricting their acceptance of IDs for official purposes from noncompliant states and territories.

The second statute, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, as amended, generally bars state and local governments from providing "state and local public benefits" to unlawfully present aliens unless the state enacts legislation that "affirmatively provides" for their eligibility, and defines state and local public benefit to mean the following:

(A) any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government; and (B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.

PRWORA also required, as part of its provisions to improve child support enforcement, that states record applicants' Social Security numbers—which unlawfully present aliens generally cannot obtain —on applications for commercial driver's licenses. The Balanced Budget Act of 1997 extended this requirement to all driver's licenses. However, this provision has reportedly been construed as mandating that states have procedures which require individuals to furnish "any Social Security Number [they] may have" when applying for driver's licenses, not as "requiring that an individual have a social security number as a condition of receiving a license." Separate provisions in a companion measure to PRWORA, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, would have barred federal agencies from accepting, for "any identification-related purpose," driver's licenses or other state-issued ID that did not contain a Social Security number that could be read visually or electronically, among other things. However, these provisions of IIRIRA were repealed in 1999.

Denying Driver's Licenses and Other ID

Several states have adopted measures that bar unlawfully present aliens from obtaining driver's licenses and other state-issued ID. Sometimes, the prohibition is explicit, as is the case with Arizona, which has enacted legislation barring the state Motor Vehicle Division from issuing or renewing a license or ID to a "person who does not submit proof satisfactory to the department that the applicant's presence in the United States is authorized under federal law." In other cases, the denial may be effectuated by requiring that applicants for driver's licenses provide Social Security numbers, which generally cannot be issued to unlawfully present aliens. Legal challenges have been brought against both types of measures on the grounds that they violate the Equal Protection Clause by abridging the fundamental right to interstate travel and impermissibly distinguishing between aliens and citizens. Challenges have also been brought claiming that these measures are per se preempted because they regulate immigration and impliedly preempted by the REAL ID Act. To date, these legal challenges have generally failed. The one apparent exception involves challenges to recent state practices of issuing driver's licenses to some, but not all, aliens granted deferred action or employment authorization documents (EADs) by the federal government.

Equal Protection

In the decisions published to date, courts have generally rejected the argument that denying driver's licenses to unlawfully present aliens runs afoul of the Equal Protection Clause. Arguably key to the courts' findings here has been their determination that measures denying driver's licenses to unlawfully present aliens are subject to rational basis review, not some type of heightened scrutiny. In reaching this conclusion, courts have taken the view that the fundamental right to interstate travel is not implicated by such measures because restrictions on one mode of travel do not constitute deprivations of the right to travel, and aliens' right to travel is less extensive than citizens' right. Indeed, one court even questioned whether unlawfully present aliens have a "fundamental right to travel about this country when their mere presence here is a violation of federal law," and it is a federal crime to knowingly transport such aliens.

Courts have also expressly declined to extend the same type of heightened scrutiny applied in Plyler to state measures denying driver's licenses to unlawfully present aliens. Those advocating for such an extension have noted that the "minor children," whose wellbeing the Court was concerned with in Plyler , are now adults, and argue that denying them a driver's license marginalizes them socioeconomically, just like denying them a "basic education" would have done. Courts, however, have rejected these arguments on the grounds that "the harm caused by the deprivation of a drivers [sic] license, while not insubstantial, pales in comparison with the harm caused by the denial of a basic education." Several courts have also distinguished the plaintiffs, as adults, from the unlawfully present minor children denied access to primary and secondary education in Plyler . Courts have further noted a range of "legitimate" government interests served by barring the issuance of driver's licenses and other forms of ID to unlawfully present aliens, including the state (1) not allowing itself to be used to "facilitat[e] the concealment of illegal aliens"; (2) preserving scarce resources by not issuing licenses to persons who may be deported; and (3) assuring the integrity of identity documents.

However, while state measures denying driver's licenses to unlawfully present aliens have thus far been found to be generally permissible, there have been circumstances wherein the denial of licenses to particular aliens who entered or remained in the United States in violation of federal immigration law have been found to violate the Equal Protection Clause. For example, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit recently enjoined the State of Arizona from denying driver's licenses to aliens without legal status who have been granted deferred action and employment authorization documents (EADs) by the federal government on the grounds that the state's distinction between these aliens and other aliens granted relief from removal and EADs by the federal government cannot withstand rational basis review. The executive branch has long had a practice of granting deferred action—a type of relief from removal—to unlawfully present aliens who are not a priority for removal. Aliens granted deferred action lack legal immigration status, but generally do not accrue additional unlawful presence while covered by a grant of deferred action. They may also be granted EADs if they establish an "economic necessity" for employment.

The Obama Administration's Deferred Action for Childhood Arrivals (DACA) initiative—which resulted in certain aliens without legal status who were brought to the United States as children being granted deferred action and work authorization—prompted resistance from some who are concerned about the apparent granting of deferred action to a group of people, rather than on an individual basis, among other things. In 2012, the governor of Arizona issued an executive order tasking state agencies with making any changes "necessary to prevent [DACA beneficiaries] from obtaining eligibility, beyond [that] available to any person regardless of lawful status, for any taxpayer-funded public benefits and state identification, including a driver's license." This order, in turn, prompted the Arizona Motor Vehicle Division to distinguish between those granted EADs as a result of DACA, and other aliens without legal immigration status who were granted EADs, in the issuance of driver's licenses. The state attempted to justify this distinction, in part, on the grounds that issuing licenses to DACA beneficiaries could lead to "improper access" to federal and state public benefits, and that the state would have to cancel their licenses if the DACA initiative were ended. However, the Ninth Circuit agreed with the reviewing district court that none of the justifications put forth by the state constitute a legitimate basis for the distinction between DACA beneficiaries and other aliens granted EADs. A state court in Nebraska has suggested that it is similarly skeptical as to whether that state's practice of denying licenses to those granted deferred action through DACA, while issuing licenses to other aliens with deferred action status, has a "rational basis."

The federal court decisions concerning the Arizona and Nebraska restrictions appear to be limited to the facts and circumstances of the cases, and should not be taken to mean that every state measure that bars the issuance of driver's licenses to unlawfully present aliens necessarily violates the Equal Protection Clause. A measure that denied licenses to unlawfully present aliens without distinguishing between categories of aliens, or relying on state officials' determinations of aliens' status, would likely be distinguished from the Arizona and Nebraska measures.

Preemption

The courts have also generally rejected the view that state measures denying driver's licenses to unlawfully present aliens constitute an impermissible regulation of immigration that is per se preempted. In challenges to state restrictions on the issuance of driver's licenses to unlawfully present aliens, plaintiffs have sometimes argued that these restrictions are regulations of immigration because they purportedly seek to exclude aliens from the community and thus attempt to determine "who should or should not be admitted into the country, and the conditions under which ... entrant[s] may remain."

For example, in 2011, the U.S. Department of Justice (DOJ) challenged provisions of Alabama's H.B. 56 that barred unlawfully present aliens from obtaining or renewing driver's licenses. The DOJ initially asserted that Alabama had "essentially given unlawful aliens the choice" between not obtaining licenses or other services from the state; obtaining such licenses and services and, thereby, committing a felony; or "leaving Alabama." Other plaintiffs and commentators have made similar arguments against the Alabama law and comparable enactments in other states, suggesting that restricting the issuance of driver's licenses to unlawfully present aliens reflects the intent to exclude them from the United States.

This line of argument has generally been rejected. Several courts have indicated that they view such restrictions as affecting purely local matters, rather than constituting an attempt to regulate who may enter or remain in the United States. One court took the view that, in addition to furthering legitimate state interests, a challenged state measure mirrored and complimented "federal objectives by denying … driver's licenses to those who are in this country illegally according to federal law."

Nonetheless, an argument could be made that particular state measures denying driver's licenses to unlawfully present aliens are per se preempted as regulations of immigration, if those measures rely upon state rather than federal definitions of who is unlawfully present, or task state officials with determining aliens' status. State or local measures that do either of these two things (i.e., establish their own classifications for aliens, or have state officials determine aliens' status independently from federal authorities) have been found to constitute impermissible regulations of immigration in other contexts.

In addition to per se challenges, some plaintiffs and commentators have also alleged that state measures denying driver's licenses to unlawfully present aliens are preempted by federal statutes, including the REAL ID Act. Thus far, however, the few courts that have considered this argument have not been persuaded. Notably, in its 2012 decision in United States v. Alabama , the U.S. Court of Appeals for the Eleventh Circuit ("Eleventh Circuit") rejected the DOJ's preemption arguments against provisions of Alabama's H.B. 56, which barred aliens "not lawfully present in the United States" from obtaining driver's licenses and made it a criminal offense for such aliens to apply for licenses. The appellate court held that these provisions were not facially preempted by federal law, including the REAL ID Act. In particular, the Eleventh Circuit emphasized that the REAL ID Act "encouraged individual states to require evidence of lawful status as a prerequisite to issuing a driver's license or identification card to an applicant."

The Eleventh Circuit did raise the possibility of tension between the state law and applicable federal statutes. It noted, for example, a possible incongruence between the category of aliens ineligible to receive a license under Alabama law and the standards for federal acceptance of driver's licenses provided in the REAL ID Act. However, the court believed the Alabama law "could be construed to avoid this problem, and if this issue does arise, it may be more appropriately addressed in the context of an as-applied challenge."

The appellate court also rejected the argument that the Alabama statute is inconsistent with federal law because it criminalizes conduct that is not subject to criminal penalty under federal statute. The Eleventh Circuit viewed this alleged conflict as a "hypothetical or potential" one, since H.B. 56 criminalizes conduct "that appears highly unlikely to occur, given that Alabama has chosen not to make [driver's licenses and certain benefits] available [to unlawfully present aliens] in the first place." More broadly, the Eleventh Circuit interpreted the REAL ID Act as not purporting to regulate "driver's licenses, identification cards, and unlawfully present aliens," and leaving the field open "for the states to adopt different policies concerning this subject."

Granting Driver's Licenses and Other ID

In contrast to states seeking to deny unlawfully present aliens driver's licenses (see " Denying Driver's Licenses and Other ID "), several states have adopted measures that would permit unlawfully present aliens to obtain driver's licenses. Sometimes, the state permits such aliens to obtain a license that looks like those issued to citizens, LPRs, and eligible lawful nonimmigrants, as New Mexico does. At other times, the state issues licenses to unlawfully present aliens that are visually distinguishable from the licenses issued to U.S. citizens and foreign nationals with lawful immigration status, although the state does not purport to restrict their usage for identification purposes.

Some have suggested that such measures are per se preempted by federal law because they regulate immigration, or are impliedly preempted by the REAL ID Act or PRWORA. However, such claims do not appear to have resulted in any judicial holdings or findings on the issue, perhaps because of limitations on who has standing to challenge such measures. Moreover, even if a plaintiff were found to have standing to challenge these measures, the argument that they are preempted by federal law could be difficult to maintain given that (1) state measures denying driver's licenses to unlawfully present aliens have generally not been viewed as regulations of immigration; (2) the REAL ID Act contemplates states issuing driver's licenses and other ID that are not recognized by federal agencies; and (3) PROWRA expressly permits states to provide public benefits to unlawfully present aliens by enacting legislation that affirmatively provides for their eligibility.

Preempted as a Regulation of Immigration

Several commentators and at least one court (in non-binding dicta) have suggested that state measures granting driver's licenses to unlawfully present aliens are per se preempted because such measures regulate immigration by legitimizing the presence of aliens whom the federal government has not authorized to be present in the United States. Those making this argument appear to be particularly concerned that driver's licenses can be used in various everyday transactions, from opening a bank account to obtaining employment, the successful performance of which further integrates the unlawfully present alien into the community—and helps create an appearance of lawful presence.

However, the view that the issuance of driver's licenses to unlawfully present aliens constitutes a regulation of immigration does not appear to have been adopted in the holdings or findings of any federal or state court. The only court to have espoused this characterization did so in dicta, in the course of rejecting a challenge to a state measure that barred unlawfully present aliens from obtaining driver's licenses. Arguably, a court could reject a challenge to measures granting driver's licenses to unlawfully present aliens on the grounds that such a measure does not regulate immigration (for example, by reasoning that state measures granting driver's licenses to unlawfully present aliens address purely local matters, not national ones).

Preemption by the REAL ID Act

As previously discussed, the REAL ID Act, when fully implemented, will prohibit federal agencies from recognizing a state driver's license or other forms of state-issued ID for official purposes unless unlawfully present aliens are ineligible to receive such documents. While some might argue that the act broadly preempts states from issuing IDs to unlawfully present aliens, these arguments seem difficult to maintain. To date, no court has held that the REAL ID Act preempts states from issuing driver's licenses and other IDs to unlawfully present aliens. The express language of the REAL ID Act does not purport to bar states from issuing driver's licenses to unlawfully present aliens. The legislative history of the act supports the view that the statute was not intended to prohibit states from issuing IDs that do not comply with REAL Act standards. Indeed, the act is directed primarily at federal agencies, and bars them from accepting, "for any official purpose," a state driver's license or other ID card that does not satisfy the act's minimum standard requirements. Arguments that the REAL ID Act generally preempts states from issuing driver's licenses and other IDs that do not comply with the act's minimum standard requirements also seem undercut by the language of Section 202(d)(11) of the act, which states the following:

In any case in which the State issues a driver's license or identification card that does not satisfy the requirements of this section, [States shall adopt practices which] ensure that such license or identification card—

(A) clearly states on its face that it may not be accepted by any Federal agency for federal identification or any other official purpose; and

(B) uses a unique design or color indicator to alert Federal agency and other law enforcement personnel that it may not be accepted for any such purpose.

The nature of this requirement seems to indicate that states are not preempted from issuing forms of identification that do not comply with the minimum standards established pursuant to the REAL ID Act. Moreover, while the act requires that non-conforming IDs use a unique identifier to alert federal officials that the document is not to be accepted for official purposes, the apparent consequence of a state failing to comply with this requirement is not that the state will be preempted from issuing IDs; rather, the consequence appears to be simply that the IDs that state issues will not be recognized by federal agencies for official purposes

Preemption by PRWORA

At least one commentator has suggested that measures granting driver's licenses to unlawfully present aliens are preempted by PRWORA, but this appears unlikely given PRWORA's definition of state and local public benefits and its provisions expressly permitting states to enact legislation that affirmatively provides for unlawfully present aliens' eligibility for such benefits. As an initial matter, it is unclear that PRWORA's definition of state and local public benefit encompasses the issuance of driver's licenses to unlawfully present aliens. This definition has two prongs, one of which includes "any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government." The other includes

any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.

Driver's licenses would not appear to be public benefits under the first prong, insofar as that prong applies only to professional and commercial licenses, and "ordinary" (i.e., noncommercial) driver's licenses would not appear to be encompassed by the everyday meaning of either "professional license" or "commercial license."

An argument could also be made that driver's licenses are not state and local public benefits under the second prong of PRWORA's definition because they do not entail "payments" or "assistance"—as that term has generally been construed—to individuals or households. Driver's licenses are issued by state agencies using appropriated funds, and an argument could be made that their issuance "assists" unlawfully present aliens by making it easier for them to engage in everyday transactions. However, courts have generally declined to view "assistance" as encompassing everything that could benefit unlawfully present aliens in any way, instead construing it to refer only to services that "assist people with economic hardship," and could "create [an] incentive for illegal immigration." Moreover, even if driver's licenses were viewed as public benefits for purposes of PRWORA, PRWORA expressly authorizes states to grant public benefits to unlawfully present aliens by subsequently enacting legislation that affirmatively provides for their eligibility. Thus, the only state actions that would potentially be barred by PRWORA would seem to be those that are not pursuant to state legislation enacted subsequent to PRWORA.

Granting Driver's Certificates, But Not Licenses

A few states, seeking to promote traffic safety by screening drivers, but not wishing to issue driver's licenses to unlawfully present aliens, have adopted measures that permit such aliens to obtain "Certificates for Driving" (CFDs) or "Driving Privilege Cards" (DPCs), but not driver's licenses. Utah is one such state, issuing DPCs to persons who cannot "provid[e] evidence of lawful presence in the United States." Tennessee formerly had a similar provision that permitted "[p]ersons whose presence in the United States has [not] been authorized by the federal government" to obtain CFDs. In both cases, the documents issued by the state expressly note, on their face, that they are for driving purposes only, but not for ID purposes. This restriction is arguably significant, in that driver's licenses and other state-issued ID have been widely recognized to play an important role in establishing identity for purposes of various everyday transactions (e.g., opening bank accounts, obtaining employment). Partly because CFDs and DPCs would not necessarily be recognized for such purposes, and partly because of the perceived "stigma" associated with having a CFD or a DPC instead of a driver's license, some have alleged that these measures are impermissible, and that states must grant unlawfully present aliens' driver's licenses like those that issued to citizens and LPRs.

These arguments were rejected by a federal district court in the case of League of United Latin American Citizens [LULAC] v. Bredesen , in a ruling that was upheld by the U.S. Court of Appeals for the Sixth Circuit ("Sixth Circuit'). In this case, the district court's found that a Tennessee measure, permitting unlawfully present aliens to obtain CFDs but not driver's licenses, did not run afoul of the Equal Protection and Supremacy Clauses. In so finding, the district court held that (1) "illegal aliens" are not a "suspect class"; (2) heightened scrutiny, like that applied in Plyler , is unwarranted because the aliens denied driver's licenses "do[] not resemble the class of children described in Plyler "; and (3) aliens' right to travel is more limited than citizens' right.

However, due in part to the unique nature of the state document at issue in the case, which granted aliens documents that were valid for driving, but not for ID, the reviewing district court touched upon issues not addressed in other decisions. For example, the district court expressly rejected the argument that there is a "constitutional right to a state-issued identification card acceptable to third-parties." It also rejected the plaintiffs' due process claim that the Tennessee measure created an unconstitutional irrebuttable presumption that aliens holding CFDs are "threats to homeland security" because the plaintiffs' failed to show that the state's distinctions between documents issued to unlawfully present aliens and other persons were not rationally related to the state's legitimate interest in promoting homeland security.

The issuance of CFDs and DPCs to unlawfully present aliens has also been criticized by those who would also deny driver's licenses to unlawfully present aliens. However, such criticisms do not appear to have resulted in legal challenges, and any such challenges to the granting of CFDs and DPCs to unlawfully present aliens would likely be subject to the same analysis given to measures granting driver's licenses to such persons.

Municipal ID Cards

Some cities have also adopted measures that provide unlawfully present aliens with municipal ID cards for use in their dealings with the city. For example, the San Francisco Board of Supervisors passed an ordinance on November 20, 2007, authorizing the County Clerk's Office to issue "SF City ID Cards" to all San Francisco residents, regardless of their immigration status. All city agencies and "other entities receiving [c]ity funds" are required to accept the cards as proof of identity and residence, unless state or federal law requires otherwise. This includes the Police Department, Department of Public Health, Public Utilities Commission, and Child Support Services, among others. The card can also be used as a library card at the city's public libraries; a form of identification to open a checking account at participating banks; or to open a "Family Account" with the Recreation and Parks Department. Some commentators have expressed concerns about such practices that are akin to those raised about state measures granting driver's licenses to unlawfully present aliens. However, for the reasons previously discussed, this practice may be unlikely to be found to be barred by federal law (see " Granting Driver's Licenses and Other ID ").

It is also important to note that municipal ID card measures would arguably not override existing federal restrictions upon the receipt of federal, state, or local public benefits by unlawfully present aliens. Federal law bars unlawfully present aliens from receiving federal public benefits —a term that encompasses any benefit provided using federal funds, even if the program is administered by a state or local government. This general prohibition upon the provision of federal public benefits to unlawfully present aliens would continue to apply, even if a local agency were otherwise "required" to accept municipal ID cards, because federal law preempts inconsistent provisions of state and local law. Similarly, where state and local public benefits are concerned, the state would arguably need to have enacted legislation that "affirmatively provides" for unlawfully present aliens' eligibility in order for the local agency to provide such benefits to such aliens.

Recognition of Foreign Consular IDs

A foreign consulate's issuance of consular IDs to its country's nationals has been a long-standing practice. However, the number of IDs issued to foreign nationals residing in the United States, and the recognition of these IDs as a legitimate form of identification by government and private institutions, has grown significantly in recent decades. Some states and localities have adopted measures that recognize consular IDs, including as a form of identification to obtain a driver's license, while others have limited or prohibited their acceptance by government and private entities.

Measures restricting or permitting the acceptance of consular IDs by government entities generally seem unlikely to give rise to preemption concerns. Restrictions on the acceptance of consular IDs by government authorities, particularly in relation to applications for a state-issued driver's license or ID, appear to be consistent with federal law, and the adoption of such restrictions seems to be encouraged by the REAL ID Act. The act effectively prohibits states, when issuing driver's licenses or state ID cards, from accepting for purposes of personal identification foreign documents other than valid passports, if such driver's licenses or ID cards are to be accepted for federal purposes. Accordingly, a state ID would not comport with REAL ID Act standards if an applicant for the state ID document were allowed to submit a consular ID as verification of his or her identity.

On the other hand, it also does not appear that the REAL ID Act bars states from recognizing consular IDs, including for purposes of verifying the identity of an applicant for a state-issued ID. As previously discussed, the REAL ID Act appears to still permit states to issue driver's licenses and other IDs that do not comply with the act's issuance standards, though non-compliant IDs may not be accepted by federal agencies for official purposes. Accordingly, a state that opts to accept consular IDs as a form of identification, including as part of an application for a state-issued form of ID, would not appear to be preempted from doing so.

While it might generally be permissible for state or local governments to deny recognition of consular IDs without coming into conflict with federal law, a limited exception might exist in the context of law enforcement. The United States is a party to the Vienna Convention on Consular Relations (VCCR), a multilateral agreement codifying consular practices originally governed by customary practice and bilateral agreements. Pursuant to Article 36 of the VCCR, when a national of a signatory State (i.e., country) is arrested or otherwise detained in another signatory State, appropriate authorities within the receiving State must inform him "without delay" of his right to have his consulate notified. Arguably, possession of a consular ID by an arrested person may assist law enforcement in verifying that the person is a foreign national and assist police in identifying the appropriate foreign consulate to contact on the foreign national's behalf. A state or local restriction on police acceptance of such documents could be subject to a preemption challenge on the grounds that the policy conflicts with or frustrates the purposes of the VCCR's consular notification requirements.

State or local restrictions on private entities' acceptance of consular IDs have been subject to legal challenge, and the single reviewing federal court that considered such a challenge found that the restriction raised preemption and other concerns. In 2011, a federal district court in Buquer v. City of Indianapolis preliminarily enjoined enforcement of an Indiana statute that made the offering or acceptance of a consular ID as a form of identification (other than for law enforcement purposes) a civil infraction. While the parties stipulated that a state could decline to recognize consular IDs as a legitimate form of identification, the district court agreed with plaintiffs' argument that the Indiana statute's "sweeping prohibition" conflicted with the rights afforded to foreign consulates under the VCCR, and also had the potential to directly interfere with the Executive's conduct of foreign affairs. While the district court noted that the state law did not bar foreign consulates from issuing consular IDs (which the court opined would have been a direct violation of the VCCR ), it characterized the Indiana statute as making the issuance of consular IDs "meaningless as [the restriction] prohibits almost every use for which the documents are ordinarily issued, including for identification purposes in private commercial transactions that are conducted between private parties." The court also deemed it important that the State Department had cautioned against action from being taken against consular IDs that might lead other countries to establish similar limitations on U.S. citizens' usage of consular IDs within their territories. Finally, the court noted U.S. Treasury Department regulations which permit (but do not require) financial institutions to accept consular IDs as a legitimate form of identification. While the court did not believe the Indiana measure directly conflicted with this regulation, it stated that the regulation provided "further evidence of the federal government's overarching and legitimate interest in proceeding with caution with regard to regulating the use" of consular IDs.

The Buquer court also found that the plaintiffs were likely to succeed on their due process and equal protection challenges to the statute, as Indiana had failed to establish a rational relation between the statute's prohibition and a legitimate governmental interest. While Indiana had argued that the statute helped to ensure the prevention of fraud and the reliability of identification of individuals within the state, the court concluded that, after "examination of the admittedly limited evidence before it," consular IDs were at least as reliable forms of documentation as other types of ID that were not singled out for sanction by Indiana.