The U.S. Court of Appeals for the Second Circuit recently affirmed a 2019 lower court decision that continued to grant undocumented immigrants the right to obtain a standard driver’s license in New York. The plaintiff, Michael Kearns, sued the state by arguing that he had the "impossible task of choosing between following state law and risking federal law violation" under the REAL ID Act of 2005.

Congress passed The REAL ID Act to create a standardization of issuing driver’s licenses in each state. The law is codified in 49 U.S.C. § 30301 and was influenced in large part by the September 11, 2001, terrorist attacks and was passed on the recommendation of the 9/11 Commission. The issuance of driver’s licenses is the role and responsibility of the state, and each state continues to develop its own policies and procedures for issuing. However, this Act put additional requirements on issuance for licenses to be used for federal identification purposes, which have benefits such as boarding a commercial airplane in the United States. It does not, however, prohibit states from issuing both compliant and non-compliant IDs.

In order to receive a REAL-ID compliant driver’s license or ID card, the Act requires applicants to submit their social security number and prove their lawful immigration or citizenship status. Lawful status is usually understood to be citizens and lawful permanent residents, but it also includes “certain persons who may have entered the country without pre-authorizing, such as those with deferred action status or pending asylum applications.” The state then must verify an applicant’s “lawful status” with the Department of Homeland Security databases; those records retrieved are then kept on file with the state.

New York’s Driver’s License Access and Privacy Act, also known generally as the Green Light NY Law, passed in the state legislature in June 2019. It created a set of “certain policies and procedures related to standard licenses” that are distinct from issuing REAL ID Act-compliant licenses. For applicants, the law allows for the DMV to accept some forms of foreign documents to prove an applicant’s age and identity. It also allows applicants to submit an affidavit that they have not been issued a Social Security Number to fulfill the requirement.

The New York law puts restrictions on the DMV for keeping records of these types of licenses and applicants. The DMV may not retain any document submitted to obtain the standard license after issuance. It also prevents officials from “disclosing an applicant’s records or information to ‘any agency that primarily enforces immigration law or to any employee or agent of such agency’” without a court order or warrant. And finally, it requires the DMV to notify the applicant within three days if a federal immigration agency requests information regarding their record.

In July 2019, just one month after the law passed, Erie County Clerk Michael “Mickey” Kearns sued New York Governor Andrew Cuomo, Attorney General Letitia James, and the Department of Motor Vehicles (DMV) Commissioner Mark Schroeder. He claimed the new law passed in New York made it impossible for him to do his job and simultaneously abide by federal laws. He argued that the state law makes him vulnerable to federal criminal and civil penalties. Kearns sued for an injunction of the state law and a restriction that would prevent Governor Cuomo from removing him from his position for refusing to comply with the state law.

Mickey Kearns was elected as the Erie County Clerk in a special election in 2017. Kearns is the clerk of one of the few counties in New York that are responsible for issuing licenses where there is not a DMV. But, as a designated agent of the DMV Commissioner and not an employee or issuing official, he has a limited role within the DMV and also limited access to their databases.

The District Court found that not only was Kearns not the “proper plaintiff to litigate the claims” because of his special status with the DMV, but that his claims were purely hypothetical and had not proved a real, concrete, or particularized injury. They found that “Kearns’ role in the issuance of driver’s licenses is purely ministerial” and that he failed to prove any scenario that he would “have any personal interaction with a standard-license applicant to expose him to criminal liability.”

Additionally, the District Court argued that the DMV only accepts subpoenas, warrants, and court orders at the headquarters in Albany. Therefore, Kearns would never be in a situation where he would accept such documents. The lower court ruled Kearns’ claims are only “speculation about a series of implausible events.”

The Second Circuit Court of Appeals affirmed the District Court decision by stating “Kearns had failed to plead either a credible threat of prosecution for complying with the state law or an injury to his office.” They added that Kearns lacked Article III constitutional standing, which ensures that “federal courts do not exceed their authority as it has been traditionally understood.”

The REAL ID Act of 2005 has faced bi-partisan scrutiny. Immigration activist groups calling it an “internal passport” and yet another discriminatory law against immigrants. Other activists, such as tea party Republicans, have also argued that the law is a privacy concern due to the record maintenance required by the state’s motor vehicle divisions and creates a financial burden on the states to comply.

The REAL ID Act required all states to have at least one fully compliant version of their identification cards in time for federal agencies to enforce the Act by October 2020. Due to the coronavirus pandemic, President Trump allowed for an extension to this rule until October 2021. However, on September 10, 2020, the Department of Homeland Security announced that all 50 states were in full compliance with the law.

Kearns’ failed argument that by continuing to issue standard IDs he is (or could be) indirectly harboring undocumented immigrants continues to give states rights while still complying with federal law. The decision from the Second Circuit Court of Appeals not only reinforces both state and federal law but closes another opportunity to use the two levels of regulations in the United States against each other for political or personal opinions.