REAL Consequences: How Massachusetts’s Stricter Than Necessary Drivers’ License Policy Hurts Undocumented Residents

Earlier this month, the Department of Homeland Security (DHS) granted Massachusetts a one-year extension for coming into compliance with the REAL ID Act, a law that requires state-issued identification cards to meet certain standards in order to be recognized by the federal government. But Massachusetts already exceeds what REAL ID requires in at least one respect: since July 2016, Massachusetts no longer issues drivers’ licenses of any kind to residents who cannot prove their lawful status in this country. This blanket prohibition goes beyond the REAL ID Act. According to DHS, “REAL ID allows compliant states to issue driver’s licenses and identification cards where the identity of the applicant cannot be assured or for whom lawful presence is not determined.” This suggests that, if Massachusetts so chooses, it has discretion to issue drivers’ licenses to those who cannot prove lawful status. The hardships of Massachusetts’ policy on those who cannot prove lawful status are already materializing, and should be reversed.

REAL ID was passed in 2005 after the 9/11 Commission Report called for the federal government to “set standards for the issuance of birth certificates and sources of identification, such as driver’s licenses.”[1] REAL ID does not call for the creation of a “national” identification card; rather, it requires certain features of state-issued IDs to meet particular standards in order to be recognized federally. One requirement is lawful status.[2] If a state does not comply with the REAL ID standards, IDs issued by that state will not be recognized by any federal agency.[3] A holder of a non-compliant state ID will not be able to fly commercial airlines, open a bank account, or enter a federal building.

As of September 2017, 24 states—including Massachusetts—had still not met federal standards. The severe compliance delay is due, at least in part, to the challenging requirements of REAL ID. For instance, the law calls for an overhaul of motor vehicle registry infrastructure by requiring that states create interlocking electronic databases containing all licensees’ information.[4] REAL ID implementation has also been slowed by state and interest groups opposition on privacy and federalism grounds. Under the Obama Administration, non-compliant states were routinely granted extensions. But Trump’s DHS will likely not be so generous. In June, DHS Secretary John Kelly told the Washington Post that he “will ensure [REAL ID] is implemented on schedule — with no extension — for states that are not taking it seriously.”

Massachusetts governor Charlie Baker clarified his intention to bring the state into compliance in 2016. He announced that he would sign into law Bill H.4488, an appropriations bill that included an amendment declaring: “No license of any type may be issued to any person who does not have lawful presence in the United States.” The Massachusetts Registrar of Motor Vehicles confirmed that Governor Baker’s amendment imposes an affirmative requirement on license applicants to prove they are in the country legally. As discussed, the Massachusetts Legislature and Governor Baker actually go further than is required of federal law, because DHS actually permits issuance of licenses “where the identity of the applicant cannot be assured or for whom lawful presence is not determined.” Some states are moving into REAL ID compliance by creating a two-tiered licensing system, in which they will issue both REAL ID-compliant drivers’ licenses and “basic” drivers’ licenses only recognized within the issuing state. The availability of “basic” licenses is consistent with the mandates of REAL ID—Massachusetts is simply choosing not to provide its residents with this option.

Massachusetts should reverse course and allow those who cannot prove legal status to obtain drivers’ licenses. The Boston area alone is home to an estimated 180,000 undocumented individuals, who are hardworking law-abiding members of the community. Enabling these individuals to obtain state licenses is both in their own best interests and the public interest. Individuals need official state identification to access myriad social and economic resources. Furthermore, public safety is served by a state ensuring that its drivers are properly licensed.

For example, undocumented individuals inevitably need to drive to work and care for their families, and are put at great legal risk when they do so without being licensed.  A public defender friend recently told me about an undocumented client who was pulled over for a minor traffic violation and was arrested for driving without a license. The client has a wife and two children—all four of them are undocumented. Their livelihood depends on their father working, and to work, he has to drive. Even if the charges are dropped against him, he will likely continue to drive without a license in the future, because he has no other choice.

Massachusetts’s stricter than necessary drivers’ license laws will not make us safer. They only further marginalize a population during a time of renewed xenophobia.

 

[1] National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report, 390 (2004), https://www.9-11commission.gov/report/911Report.pdf.

[2] Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief (“REAL ID Act”), Pub. L. No. 109–13, § 202(c)(2)(B), 119 Stat. 231 (2005).

[3] Id. at § 202(a)(1).

[4] New York Civil Liberties Union, No Freedom Without Privacy: The REAL ID Act’s Assault on Americans’ Everyday Life, 18 (2009), https://www.nyclu.org/sites/default/files/publications/nyclu_pub_no_freedom_without_privacy.pdf.

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Samantha is a 2L at HLS. She is interested criminal justice reform and plans to pursue a career in public defense. She currently works as a student attorney at the Harvard Prison Legal Assistance Project and is a co-director of the Harvard ACLU's Criminal Law Reform group. During her 1L summer, Samantha worked on state habeas corpus petitions for death row inmates at the Office of Capital and Forensic Writs in Austin, Texas. Prior to law school she worked as a paralegal at a criminal defense law firm, and received her B.A. in History from Brown University

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