Why Georgia's SB-6, Seizing Driver's Licenses from DACA Recipients, Is Unconstitutional (and Bad Public Policy)

In an act that seems like a desperate last gasp to remain relevant, Georgia's anti-immigrant caucus has once again submitted far-reaching anti-liberty legislation to the Georgia Legislature in November 2014.  SB-6 was introduced by Senator Josh McKoon (R)(Columbus) during the November pre-filing period. SB-6 has remarkable breadth and overreach, and is not just limited to seizing driver's licenses from lawfully present DACA recipients.  It actually authorizes the Department of Driver's Services to take citizen's DNA before giving them a license.  This unnecessary DNA Seizure bill is simply not in the best interests of Georgia.  

As if the seizure of driver's licenses already issued to DACA recipients and other beneficiaries of federal immigration Deferred Action (such as battered women, victims of crimes, and those whose removal is not the national interest) is not enough, SB-6 also gives no legitimate reason why these noncitizens should be deprived of their legal right to drive, as opposed to allowing other noncitizens, including those who also have "lawful presence," but which the bill confuses with "lawful status." 

To educate those unfamiliar with US immigration law, DACA beneficiaries have been declared by DHS and USCIS to be persons who have "lawful presence" in the United States.  The same is true for other beneficiaries of federal Deferred Action.  They do not necessarily (although they could) have "lawful status," such as visa holders and permanent residents have, but they do have the right to obtain a state issued ID under the terms of the REAL ID Act of 2005.

SB-6's provisions related to the seizure of driver's licenses are found in Section 4.  This section tries to modify the terms of Georgia's acceptance of the Identification provisions of the REAL ID Act of 2005 by deleting the authorization to provide state issued identification to persons with "Approved deferred action status."  The simple reality is that the State of Georgia was required to adopt ALL of the provisions of the REAL ID to have state issued identifications to remain valid for travel and other federal purposes.  By striking this provision in an attempt to seize currently issued driver's licenses, the state legislature would render ALL Georgia identifications invalid for all purposes, including for travel and driving outside the state's borders.  

SB-6 also attempts to be too clever by half, by changing the wording of "lawful presence" to "lawful status" throughout the Georgia Code Section (40-5-21.1) authorizing the issuance of state identifications or licenses.  Its obvious that no attorney who understands federal immigration law advised the writer of this bill about the effect of doing so. The word "status" in the context of deferred action is defined within The REAL ID Act itself, wherein (as in current Georgia law) it is referred to as "deferred action status."  

In much the same way that the ultimately futile and useless (but economically harmful) HB-87 tried to define the non-existent, yet intentionally inflammatory term "illegal alien." SB-6 attempts to define "lawful alien status."  Unfortunately for the authors of SB-6, a term such as this can only be defined by the federal government, which enjoys complete authority over immigration law.  The State of Arizona found that out the hard way (as did the State of Georgia), when the US Supreme Court shut down its anti-immigration legislation in Arizona v. United States, 567 U.S. ___ (2012). In that case, Supreme Court clearly stated that: "[f]ederal governance of immigration and alien status is extensive and complex."  The Georgia State Legislature cannot define its way into a constitutionally valid seizure of drivers licenses.

SB-6 also does things like:

• give the DDS the right to obtain "DNA" and "retinal scans" from any individual it wishes before giving them a ID or a driver's license, 
• release personal information of ALL noncitizens to any government agency for any reason, 
• taking fingerprints for all noncitizen licenses (including lawful permanent residents), 
• require sworn affidavit to verify status, 
• increase the fines for driving without a license to punitive levels (for everyone), 
• allow for seizure of vehicles and impounding for 60 days of any vehicle driven by a driver without a license (for everyone and regardless of the vehicles owner), and 
• require the DDS to participate in the "E-Verify" initiative for DMVs (effectively giving EVERY Georgian's Picture and ID to the federal government for use in E-Verify, effectively creating a national ID for Georgia residents (but not anyone else).  
• All with NO funding allocated to carry out any of these tasks.

It's amazing what a "little" bill like this can do to destroy civil liberties!

But, the main reason I write is as to why SB-6, if passed, would be immediately challenged in Federal Court and why that Federal Court Judge would find it unconstitutional.  The State of Arizona, through a Governor Brewer executive order, denied driver's licenses to DACA recipients, even though under state law (virtually identical to Georgia's), they were required to issue such a license. The State of Arizona was sued by the Arizona Dream Act Coalition in attempt to secure driver's licenses for DACA recipients.  In late November 2014, the Ninth Circuit Court of Appeals found that the action by Arizona in denying the driver's licenses to Deferred Action beneficiaries violated the Equal Protection Clause of the U.S. Constitution, and ordered the state to begin to issue the licenses to DACA (and other Deferred Action) beneficiaries. The Supreme Court then, a week later, denied cert and refused to consider the case, putting to an end another anti-immigrant effort.  

The opinion is worth the read.  The proponent of SB-6 has cited a Nebraska case, which purports to be contrary to the Arizona decision, in support of his bill.  But anyone who reads that case will see that the reported opinion simply states that Nebraska law only issued driver's licenses to people in "lawful status" who could be verified by SAVE and thus there was no equal protection violation. The opinion is flawed, however, in that DACA recipients can be verified through SAVE, and Nebraska also gives driver's licenses to individuals without "lawful status" (as does Georgia), and is a point that was actually reviewed and rejected in the 9th Circuit decision.  Today, Nebraska is the only state in the US which currently does not. grant driver's licences to Deferred Action beneficiaries.  

From a public policy perspective, keep in mind that this is yet another black eye for a state which still has some of the highest unemployment rates in the county.  DACA recipients and other Deferred Action recipients have lawful presence. They can and do legally work for many Georgia employers.  They pay taxes, own houses and own cars, and have established a life out of the gray margins of society.  What is the purpose of depriving someone who is lawfully here, legally eligible to work, of a drivers license?  Some sort of purported punishment for not agreeing with Federal Immigration policy?  Do the proponents of this bill actually think this will "chase" people from the state?  If so, they are, simply put, delusional.  Its a monumental inconvenience not have a driver's license, but it does not stop people from driving, regardless of the fines imposed, and it says, once again to the nation that Georgia does not like foreign people.  (Georgia also likes to take your DNA and give your picture and personal information to the Feds for a national id database).  

Let's hope calmer and wiser heads prevail underneath the Gold Dome this session, and SB-6 never sees the light of day.  It deserves to be forgotten, and like it counterpart HB-87, is destined for the dustbin of history.