Let undocumented immigrants drive

In many parts of our state, driving is a necessity. Getting to work, to school or to the doctor are all virtually impossible without a car or truck. That’s why Gov. George Pataki’s 2001 decision to require proof of legal immigration status to obtain a driver’s license was so devastating. Since then, many immigrant New Yorkers have been faced with an impossible choice: drive without authorization or go without life necessities.

The impact of restricting access to driver’s licenses has also been felt far beyond the immigrant community — because unlicensed, and thus uninsured, drivers push up insurance premiums for everyone and make our roads less safe.

For example, within the first 10 years following New Mexico’s 2003 decision to extend licenses regardless of immigration status, the rate of uninsured vehicles declined 72% and traffic fatalities dropped 22%. That alone should motivate us all to support restoring access to licenses for all New Yorkers.

But now, with President Trump’s deportation machine churning at full speed, the stakes have gotten even higher. Today, every time an undocumented mother or father gets behind the wheel, they are a single broken taillight away from deportation.

This is why passing legislation to restore access to driver’s licenses for all New Yorkers is a top state legislative priority for immigrant communities. Unfortunately, as with so many other Democratic legislative priorities, the Republican-controlled state Senate remains a seemingly insurmountable obstacle.

The good news: Unlike many other priorities, restoring access to licenses does not actually require any legislative action at all. Just as Pataki restricted immigrant access to driver’s licenses unilaterally, Gov. Cuomo could unilaterally restore such access.

Cuomo recently stated that he believes that to restore access to driver’s licenses “we would have to change the state law.” He is mistaken. New York law does not now, and has never, required proof of lawful immigration status to apply for a driver’s license.

There is no debate on this point. New York’s highest court has acknowledged that there is no “legal presence” requirement for driver’s licenses in New York. Rather, the court has made clear that licenses are available for people who are “not eligible for a Social Security number,” a group that includes undocumented immigrants.

The court also held that the commissioner of the Department of Motor Vehicles, a gubernatorial appointee, has broad discretion to determine what types of documents to require with a driver’s license application.

Nor is there any federal requirement that individuals possess lawful immigration status to obtain driver’s licenses. In 2007, while then-Gov. Eliot Spitzer was engaged in a failed attempt to restore access to licenses for immigrant New Yorkers, President George W. Bush’s secretary of homeland security readily admitted that “federal law does allow states to make that choice.”

In fact, 12 states already provide driver’s licenses regardless of immigration status. Federal law explicitly grants states the option of creating a tiered driver’s license system, which New York has done, so that people who don’t have federally dictated identification can still get licenses. Cuomo could easily grant all immigrants access to such existing licenses today.

It seems likely that Cuomo’s cautious approach to the issue is not, in fact, driven by any genuine legal uncertainty but rather is an unfortunate byproduct of Spitzer’s ham-handed effort to restore access to driver’s licenses and the political debacle that followed.

In many parts of the state without DMV offices, independently elected county clerks are responsible for issuing licenses. Following Spitzer’s surprise announcement, a vocal group of mostly Republican clerks rallied against the proposal and promised to refuse to issue licenses to undocumented immigrants. They had no legal authority to refuse to implement the eligibility requirements established by Spitzer, but their opposition posed a political problem.

This time, it may make sense for Cuomo to begin by implementing any new policy through the dedicated state DMV offices he directly controls, thereby bypassing county clerks altogether. But that is a political, not legal, judgment to be made.

Of course, for those fighting for the restoration of access to driver’s licenses for immigrant New Yorkers, legislation is preferable. But there is no debating Cuomo’s clear legal authority to take action now. He can, and should, act.