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. These CFDs or DPCs note, on their face, that they are valid for driving, but not for purposes of identification. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
One aspect 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 state-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. Some have barred the issuance of driver's licenses and other state-issued ID to unlawfully present aliens; others permit their issuance; and yet others instead grant unlawfully present aliens Certificates for Driving (CFDs) or Driving Privilege Cards (DPCs). CFDs or DPCs expressly state, on their face, that they are valid for driving, but not for other purposes. The federal government has generally not intruded on state control over the issuance of driver's licenses, although the REAL ID Act of 2005 (P.L. 109-13, Div. B) will, when implemented, bar federal agencies from accepting, "for any official purpose," licenses or ID cards issued by states that do not meet specific requirements.
Regardless of whether they would deny or grant driver's licenses and other state-issued ID to unlawfully present aliens, such state measures have been challenged on various grounds. While these grounds can vary depending upon the specific statute or practice in question, the grounds most commonly asserted appear to be violations of the Equal Protection and Supremacy Clauses of the U.S. Constitution. The Equal Protection Clause bars states from "deny[ing] to any person within [their] jurisdiction the equal protection of the laws," and aliens have been found to be encompassed by the Clause's usage of "person." As a result, measures that would treat aliens differently than citizens may be subject to challenge on equal protection grounds. In particular, state measures that distinguish between aliens and citizens are generally subject to some type of heightened scrutiny, although the exact degree of scrutiny can vary depending upon the persons and rights affected. The Supremacy Clause, in turn, establishes that federal law is "the supreme Law of the Land," and may preempt any incompatible provisions of state law.
State measures that would deny driver's licenses and other state-issued ID to unlawfully present aliens have historically not been found to violate either the Equal Protection or the Supremacy Clause, as a general matter. The various courts that have reviewed such challenges, to date, have found that these measures do not infringe upon the fundamental right to travel because restrictions upon a single mode of travel (i.e., driving) are not tantamount to restrictions on the right to travel, and aliens' right to travel is more limited than citizens' right. The courts have similarly found that such measures do not impermissibly distinguish between unlawfully present aliens and other persons because unlawfully present aliens are not a "suspect classification," and the measures serve "legitimate" government interests. The courts have also found these measures are not, as a general matter, per se preempted on the grounds that they regulate immigration, or preempted by the REAL ID Act. However, state measures that distinguish, without a legitimate interest, between categories of aliens, or that rely upon state definitions or determinations of aliens' status, may be found to be impermissible.
Although some commentators have suggested that they are preempted, state measures that grant driver's licenses and state-issued ID to unlawfully present aliens do not appear to have been subject to litigation. The argument that such measures are preempted could, however, be difficult to maintain, because the REAL ID Act arguably contemplates states issuing licenses and other IDs that federal agencies do not recognize for official purposes, and it seems unlikely that granting licenses to unlawfully present aliens would be seen to regulate immigration. Similarly, while federal law generally restricts the circumstances in which states may provide "public benefits" to unlawfully present aliens, driver's licenses are unlikely to be seen as public benefits.