Unlawfully Present Aliens, Driver’s Licenses,
and Other State-Issued ID: Select Legal Issues
Kate M. Manuel
Legislative Attorney
Michael John Garcia
Legislative Attorney
March 28, 2014
Congressional Research Service
7-5700
www.crs.gov
R43452

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Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Legal Issues

Summary
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 unlawfully present aliens, or that rely upon state definitions or
determinations of who is unlawfully present, 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.
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Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Legal Issues

Contents
Basic Legal Principles ..................................................................................................................... 2
Equal Protection ........................................................................................................................ 2
Preemption ................................................................................................................................. 5
Denying Driver’s Licenses and Other State-Issued ID .................................................................... 9
Equal Protection ........................................................................................................................ 9
Preemption ............................................................................................................................... 12
Granting Driver’s Licenses and Other State-Issued ID.................................................................. 15
Preempted as a Regulation of Immigration ............................................................................. 16
Preemption by the REAL ID Act ............................................................................................. 16
Preemption by PRWORA ........................................................................................................ 17
Granting Driver’s Certificates, But Not Licenses .......................................................................... 19
Municipal ID Cards ....................................................................................................................... 20
Recognition of Foreign Consular IDs ............................................................................................ 21

Contacts
Author Contact Information........................................................................................................... 24

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Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Legal Issues

ne 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
Oof government-issued identification documents (IDs). The issuance of driver’s licenses
has historically been considered a state matter,1 and states have taken a variety of approaches
here. Some states, responding to concerns about national security, the rule of law, or the presence
of “illegal aliens” within their jurisdiction,2 have adopted measures that directly or indirectly bar
such aliens from obtaining driver’s licenses and other state-issued ID.3 In contrast, other states,
motivated by concerns related to community policing or the welfare of immigrant communities,4
have adopted measures that permit unlawfully present aliens to obtain driver’s licenses and other
ID.5 While these licenses may—or may not—be visually distinct from the licenses issued to U.S.
citizens and lawfully present aliens,6 some states do not purport to restrict the license’s use for ID
purposes, a widely recognized function of driver’s licenses.7 Yet other states, seeking to promote
traffic safety by screening drivers, but not wishing to issue driver’s licenses to unlawfully present
aliens,8 have adopted measures that permit these aliens to obtain “Certificates for Driving”
(CFDs) or “Driving Privilege Cards” (DPCs), but not driver’s licenses.9 These CFDs or DPCs
note, on their face, that they are valid for driving, but not for purposes of identification.10 There
has been similar divergence in terms of whether local governments provide alternate forms of ID

1 See, e.g., United States v. Best, 573 F.2d 1095, 1103 (9th Cir. 1978) (“[T]here is little question that licensing of drivers
constitutes an integral portion of those governmental services which the States ... have traditionally afforded.”).
2 See, e.g., Federation for American Immigration Reform, Illegal Alien Driver’s Licenses: Talking Points, available at
http://www.fairus.org/legislation/FAIR%20Illegal%20Alien%20Driver's%20Licenses.pdf (last accessed: Mar. 18,
2014) (arguing that the issuance of driver’s licenses to unlawfully present aliens endangers national security,
compromises the rule of law, and encourages illegal immigration); Gregory A. Odegaard, A Yes or No Answer: A Plea
to End the Oversimplification of the Debate on Licensing Aliens, 24 J.L. & POL. 435, 452 (2008) (discussing the role
that concerns related to national security and the rule of law have played in debates over the issuance of driver’s
licenses to unlawfully present aliens); Paul L. Frantz, Undocumented Workers: State Issuance of Driver Licenses
Would Create a Constitutional Conundrum, 18 GEO. IMMIGR. L.J. 505, 534 (2004) (discussing similar concerns about
the issuance of driver’s licenses to unlawfully present aliens voiced in conjunction with California S.B. 60 (2003)).
3 See, e.g., ARIZ. REV. STAT. §28-3153(D) (2014); IND. CODE ANN. §9-24-9-2(a)(6) (2014).
4 See, e.g., A Yes or No Answer, supra note 2, at 446-52 (discussing the role that concerns related to public safety and
participation in society have played in debates over the issuance of driver’s licenses to unlawfully present aliens);
Spencer Garlick, License to Drive: Pioneering a Compromise to Allow Undocumented Immigrants Access to the Roads,
31 SETON HALL LEGIS. J. 191, 200-204 (2006) (rationales for issuing driver’s licenses to unlawfully present aliens);
Michelle L. Waslin, Safe Roads, Safe Communities: Immigrants and State Driver’s License Requirements, May 29,
2002, available for download at http://www.nclr.org/index.php/publications/issue_brief_6-
safe_roads_safe_communities_immigrants_and_state_drivers_license_requirements/ (similar).
5 See, e.g., CAL. VEH. CODE §12801(c)(1) (2014); N.M. STAT. ANN. §66-5-9(B) (2014).
6 See infra note 101 and accompanying text for further discussion of state practices here.
7 See, e.g., Fahy v. Commn’r, N.H. Dep’t of Safety, No. 05-CV-97-SM, 2006 U.S. Dist. LEXIS 18170, at *43 (D. N.H.,
Mar. 29, 2006) (“These days, state-issued photographic identification cards serve as a common currency of personal
identification and have become an increasingly essential part of day-to-day life.”). Congress has generally barred
federal agencies from accepting any licenses issued to unlawfully present aliens for “official purposes,” as discussed
below, but the states that issue licenses (as opposed to “Certificates for Driving”) to such aliens generally do not
purport to limit their use for identification purposes.
8 Cf. License to Drive, supra note 4, at 205-06 (discussing the various interests promoted by such “compromises”).
9 See, e.g., UTAH CODE ANN. §53-3-207(7)(a) (2014); TENN. CODE ANN. §55-50-331(h) (2004).
10 See, e.g., UTAH CODE ANN. §53-3-207(7)(b) (2014) (“The division shall distinguish a driving privilege card from a
license ... by: (i) use of a format, color, font, or other means; and (ii) clearly displaying on the front of the ... card a
phrase substantially similar to ‘FOR DRIVING PRIVILEGES ONLY—NOT VALID FOR IDENTIFICATION’.”).
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Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Legal Issues

to unlawfully present aliens, and in state and local approaches to recognizing consular IDs (e.g.,
Mexico’s matrícula consular).11
The federal government has generally not intruded on state control over the issuance of driver’s
licenses,12 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.13 Congress also regulates immigration, which some have claimed means
that state measures regarding the issuance of driver’s licenses to unlawfully present aliens are
preempted.14 Congress has also enacted legislation that generally restricts unlawfully present
aliens’ eligibility for state and local public benefits, a term that has been defined to include
certain state-issued licenses, as well as “assistance” provided by state agencies or state funds.15
This report provides an overview of key legal issues raised by state laws regarding the denial or
issuance of driver’s licenses and other forms of ID to unlawfully present aliens. It also addresses
the legal issues raised by local governments issuing ID cards to unlawfully present aliens, as well
as by state and local approaches to recognizing foreign-issued ID documents.
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.16 However, the grounds most
commonly asserted appear to be violations of the Equal Protection and Supremacy Clauses of the
U.S. Constitution. Thus, these provisions are the focus of discussion in this report, and the
following paragraphs provide an overview of the basic principles implicated in discussions of
equal protection and preemption.
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.”17 Aliens have been found to be
encompassed by the Fourteenth Amendment’s usage of “person.”18 As a result, measures that

11 See “Recognition of Foreign Consular IDs.”
12 The federal government has, however, regulated the issuance of commercial driver’s licenses. See 49 U.S.C. §31308
(“After consultation with the States, the Secretary of Transportation shall prescribe regulations on minimum uniform
standards for the issuance of commercial driver’s licenses and learner’s permits by the States.”).
13 P.L. 109-13, Div. B, §202(a)(1), 119 Stat. 312 (May 11, 2005) (codified at 49 U.S.C. §30301 note). For further
discussion of the implementation of the REAL ID Act, see CRS Legal Sidebar WSLG824, The REAL ID Act:
Enforcement at Last?, by Alissa M. Dolan.
14 See “Denying Driver’s Licenses and Other State-Issued ID” and “Preemption.”
15 See Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), P.L. 104-193, tit. IV, §§401-
435, 110 Stat. 2261-2276 (Aug. 22, 1996) (generally codified, as amended, in 8 U.S.C. §§1601-1646).
16 Some measures have, for example, been challenged on grounds that are outside the scope of this report, such as
alleged violations of state Administrative Procedure Acts. See, e.g., Nowlin v. Dep’t of Motor Vehicles, 62 Cal. Rptr.
2d 409 (Cal. App. 1997); Lauderbach v. Zolin, 35 Cal. Rptr. 2d 434 (Cal. App. 1995).
17 U.S. Const., amend. XIV, §1.
18 See, e.g., Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Whatever his status under the immigration laws, an alien is
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would treat aliens differently than citizens may be subject to challenge on equal protection
grounds. The level of scrutiny applied by the courts in reviewing such measures frequently
determines whether the measure is upheld or struck down. With “rational basis review,” the
challenged measure will generally be upheld if it is a rational means of promoting a legitimate
government objective. The measure is “presumed constitutional,” and those challenging the law
have the burden of negating all possible rational justifications for the classification.19 In contrast,
with “strict scrutiny,” the challenged measure will be upheld only if the government can
demonstrate that the measure is necessary to achieve a compelling interest and is narrowly
tailored for that purpose.20 Courts have also applied other tests, falling between rational basis
review and strict scrutiny, in some cases due to the persons or rights affected by the measure.21
The level of scrutiny applied to measures that classify on the basis of alienage depends, in part,
on whether the measure is a federal one, or a state or local one. Because Congress’s plenary
power over immigration permits it to enact measures as to aliens that would be unconstitutional if
applied to citizens,22 federal classifications based on alienage are subject to rational basis review,
and have generally been upheld. For example, in its 1976 decision in Mathews v. Diaz, the
Supreme Court upheld a federal law that barred lawful permanent residents (LPRs) who had not
resided in the United States for five years from enrolling in Medicare Part B, because it viewed
the measure as a valid exercise of the federal government’s authority to regulate the entry and
residence of aliens, not as “irrational.”23 State and local measures, in contrast, have generally been
subject to strict scrutiny,24 unless (1) the restrictions involve “political and governmental
functions,”25 or (2) Congress has “by uniform rule prescribed what it believes to be appropriate
standards for the treatment of an alien subclass.”26

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surely a ‘person’ in any ordinary sense of that term.”). But see Mathews v. Diaz, 426 U.S. 67, 78 (1972) (“The fact that
all persons, aliens and citizens alike, are protected by the [constitutional guarantee of equal protection] does not lead to
the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion
that all aliens must be placed in a single homogenous legal classification.”).
19 See, e.g., Heller v. Doe by Doe, 509 U.S. 312, 320 (1993) (“[T]he burden is on the one attacking the legislative
arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in
the record, [and] courts are compelled under rational-basis review to accept a legislature’s generalizations even when
there is an imperfect fit between means and ends.”) (internal citations omitted).
20 See, e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967) (racial classifications must be shown to be necessary to some
“legitimate overriding purpose”); McLaughlin v. Florida, 379 U.S. 184, 192, 194 (1964) (racial classifications “bear a
far heavier burden of justification” than other classifications, and are invalid absent an “overriding statutory purpose”).
21 See, e.g., United States v. Virginia, 518 U.S. 515 (1996) (requiring the state to provide an “exceedingly persuasive
justification” for its policy of maintaining an all-male military academy).
22 See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 765-70 (1972).
23 Graham v. Richardson, 403 U.S. 365 (1971).
24 See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 8 n.9 (1977) (“[C]lassifications based on alienage are inherently suspect,
and are therefore subject to strict scrutiny whether or not a fundamental right is impaired.”) (internal quotations
omitted).
25 Foley v. Connelie, 435 U.S. 291, 295-96 (1978) (quoting Sugarman v. Dougall, 413 U.S. 634, 647 (1973)) (applying
rational basis review to a New York law that barred noncitizens from becoming police officers on the grounds that
states must have the power to “preserve the basic conception of a political community” for a democracy to function).
26 Plyler, 457 U.S. at 219 n.19. For further discussion of whether PRWORA provides such a “uniform rule” for states
to follow in providing public benefits to noncitizens, see CRS Report R43221, Noncitizen Eligibility for Public
Benefits: Legal Issues, by Kate M. Manuel, at pages 13-15.
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However, it is important to note that the Supreme Court decisions applying strict scrutiny to state
or local measures that treat aliens differently than citizens all involved LPRs,27 and the Supreme
Court has expressly noted that “undocumented status is not irrelevant to any proper legislative
goal.”28 In the 1982 decision in which it stated this, Plyler v. Doe, the Court applied what has
since come to be characterized as “intermediate scrutiny” in striking down a Texas statute that
prohibited the use of state funds to provide elementary and secondary education to children who
were not “legally admitted” to the United States.29 However, later courts and commentators have
suggested the heightened level of scrutiny applied in Plyler reflects the facts and circumstances of
the case—which involved a law that a majority of the Court viewed as depriving “minor
children” of a “basic education”30—and is not generally applicable to classifications affecting
unlawfully present aliens.31
The Supreme Court has recognized a fundamental right to interstate travel, the deprivation of
which generally results in the application of strict scrutiny by the courts when assessing the
permissibility of the measure.32 However, courts have also taken the view that restrictions on a
particular mode of travel (e.g., driving) do not necessarily constitute a deprivation of the right to
travel.33 The ability to obtain a driver’s license or other state-issued identification has not been
recognized as a fundamental right.34

27 See, e.g., League of United Latin American Citizens [LULAC] v. Bredesen, 500 F.3d 523, 532-533 (6th Cir. 2007)
(noting that the Supreme Court has never applied strict scrutiny to a state or local measure affecting aliens who are not
LPRs); LeClerc v. Webb, 419 F.3d 405, 416 (5th Cir. 2005) (noting that the Supreme Court “ha[s] never applied strict
scrutiny review to a state law affecting ... other alienage classifications [than LPRs]” and citing, as evidence of this,
Toll v. Moreno, 458 U.S. 1 (1982) (foregoing equal protection analysis in a case involving lawful nonimmigrant
aliens); De Canas v. Bica, 424 U.S. 351 (1976) (foregoing equal protection analysis in a case involving unauthorized
aliens); and Plyler v. Doe, 457 U.S. 202 (1982) (applying modified rational basis review in a case involving
unauthorized aliens)).
28 Plyler, 457 U.S. at 220-21. See also id. at 223 (“Undocumented aliens cannot be treated as a suspect class because
their presence in this country in violation of federal law is not a ‘constitutional irrelevancy.’”).
29 Id. at 220.
30 Id. at 220-23.
31 See, e.g., Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 459 (1988) (stating of Plyler, “We have not extended
this holding beyond the ‘unique circumstances,’ that provoked its ‘unique confluence of theories and rationales’”)
(internal citations omitted)); Laura S. Yates, Plyler v. Doe and the Rights of Undocumented Immigrants to Higher
Education: Should Undocumented Students Be Eligible for In-State Tuition Rates?, 82 WASH. UNIV. L. REV. 585, 592
(2004) (“Since Plyler, the Supreme Court has posited that the intermediate scrutiny standard is only applicable when
state legislation affects undocumented children in the area of public education, and even then only when the legislation
enjoys neither implied nor express [federal] congressional approval.”) (internal quotations omitted).
32 See, e.g., Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 901-02 (1986) (Brennan, J., plurality opinion)
(“Freedom to travel throughout the United States has long been recognized as a basic right under the Constitution. And,
it is clear that the freedom to travel includes the ‘freedom to enter and abide in any State in the Union.’”) (internal
citations omitted); Shapiro v. Thompson, 394 U.S. 618, 631 (1969) (“The constitutional right to travel from one State
to another ... occupies a position fundamental to the concept of our Federal Union.”).
33 See, e.g., Duncan v. Cone, No. 00-5705, 2000 U.S. App. LEXIS 33221, at *6 (6th Cir., Dec. 7, 2000) (“While a
fundamental right to travel exists, there is no fundamental right to drive a motor vehicle.”); Miller v. Reed, 176 F.3d
1202, 1205 (9th Cir. 1999) (no fundamental right to drive); City of Houston v. Fed. Aviation Admin., 679 F.2d 1184,
1198 (5th Cir. 1982) (“At most, [the plaintiffs’] argument reduces to the feeble claim that passengers have a
constitutional right to the most convenient form of travel.”).
34 See, e.g., John Doe No. 1 v. Ga. Dep’t of Public Safety, 147 F. Supp. 2d 1369, 1375 (N.D. Ga. 2001); Doe v. Edgar,
No. 88 C 579, 1989 U.S. Dist. LEXIS 9498, at *11-*12 (N.D. Ill., Aug. 2, 1989). However, denying a person access to
identification documents might sometimes give rise to a cognizable constitutional claim, if possession of such
documentation is necessary for the person to exercise a fundamental constitutional right. See Worley v. Waddell, 819 F.
Supp. 2d 826 (S.D. Ind., 2011) (finding that the plaintiff, a U.S. citizen, alleged a substantial due process claim, when
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Preemption
The doctrine of preemption, in turn, derives from the Supremacy Clause of the U.S. Constitution,
which establishes that federal law, treaties, and the Constitution itself are “the supreme Law of
the Land, ... any Thing in the Constitution or Laws of any state to the Contrary
notwithstanding.”35 Thus, one essential aspect of the federal structure of government is that states
can be precluded from taking actions that would otherwise be within their authority if federal law
would be thwarted thereby.
Because the Constitution entrusts Congress with the power to regulate immigration,36 state or
local measures that purport to regulate immigration—by determining which aliens may enter or
remain in the United States, or the terms of their continued presence—are, per se, preempted,
regardless of whether Congress has legislated on the matter.37 Other measures, which affect
aliens, but do not constitute regulation of immigration, could also be found to be preempted,
depending upon the scope of any congressional enactments. Specifically, federal statutes may
preempt state and local measures in one of three ways:
• the statute expressly indicates its preemptive intent (express preemption);
• a court concludes that Congress intended to occupy the regulatory field, thereby
implicitly precluding state or local action in that area (field preemption); or
• state or local action directly conflicts with or otherwise frustrates the purpose of
the federal scheme (conflict preemption).38
However, state action in fields that have traditionally been subject to state regulation may be
accorded a presumption against preemption whenever Congress legislates in the field.39 States

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he alleged that the denial of his application for a driver’s license or other photo ID prevented him from being able to
vote, obtain a marriage license, change his name, or proceed with the adoption of his child).
35 U.S. Const., art. VI, cl. 2.
36 Courts have located the source of federal immigration power in various provisions of the Constitution, and in the
inherent power of sovereign nations to control the terms upon which noncitizens may enter and remain within their
borders. See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius,—U.S.—, 132 S. Ct. 2566, 2600 (2012) (Congress’s powers
under the Commerce Clause); Arizona v. United States,—U.S.—132 S. Ct. 2492, 2498 (2012) (power to establish a
uniform rule of naturalization); Nishimara Ekiu v. United States, 142 U.S. 651, 659 (1892) (“It is an accepted maxim of
international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-
preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon
such conditions as it may see fit to prescribe.”); Henderson v. Mayor of New York, 92 U.S. 259 (1876) (power to
regulate interstate commerce); Chy Lung v. Freeman, 92 U.S. 275 (1875) (power to regulate the admission of
noncitizens); The Passenger Cases, 48 U.S. 283 (1849) (power to regulate foreign commerce).
37 See De Canas v. Bica, 424 U.S. 351, 355 (1976) (describing the regulation of immigration as “essentially a
determination of who should or should not be admitted into the country, and the conditions under which a legal entrant
may remain”).
38 See, e.g., Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000); English v. Gen. Elec. Co., 496 U.S. 72,
78-79 (1990); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248-49 (1984); Pac. Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm’n, 461 U.S. 190, 203-04 (1983). The delineation between these categories, particularly
between field and conflict preemption, is not rigid. See English, 462 U.S. at 79 n.5 (“By referring to these three
categories, we should not be taken to mean that they are rigidly distinct. Indeed, field pre-emption may be understood
as a species of conflict pre-emption: A state law that falls within a pre-empted field conflicts with Congress’ intent
(either express or plainly implied) to exclude state regulation.”); Crosby, 530 U.S. at 373 n.6 (similar).
39 See, e.g., Meditronic, Inc. v. Lohr, 518 U.S. 470 (1996).
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have historically regulated the issuance of driver’s licenses,40 and at least one court has suggested
that a presumption against preemption may apply in cases involving restrictions upon the
issuance of driver’s licenses to unlawfully present aliens.41
Two federal statutes are generally also noted, along with the federal government’s power to
regulate immigration, in discussions of whether state measures regarding unlawfully present
aliens’ eligibility for driver’s licenses are preempted. The first of these statutes, the REAL ID Act
of 2005, augmented standards for federal agencies’ acceptance of certain state driver’s licenses
and other forms of identification,42 including by establishing new minimum standards that states
must satisfy if the driver’s licenses or ID cards they issue are to be accepted by federal agencies
for any “official purpose.”43 Notably, in order for a state-issued ID to be accepted by federal
agencies for an official purpose, the state issuing the ID must require valid documentary evidence
of an applicant’s legal status. Specifically, evidence generally must be submitted that the
applicant falls under one of the following nine categories:
• is a citizen or national of the United States;
• is an alien lawfully admitted for permanent or temporary residence in the United
States;
• has conditional permanent resident status in the United States;
• has an approved application for asylum in the United States or has entered into
the United States in refugee status;
• has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry
into the United States;
• has a pending application for asylum in the United States;

40 See supra note 1.
41 Saldana v. Lahm, No. 4:13CV3108, 2013 U.S. Dist. LEXIS 148209, at *10 (D. Neb., Oct. 11, 2013). But see
Martinez v. Regents of the University of California, 241 P.3d 855 (Cal. 2010) (“The parties disagree as to whether a
presumption against preemption exists. The point is unclear. In the past, the high court has indicated that a general
presumption against preemption applies even in the context of immigration law. However, more recent high court
authority suggests that no particular presumption applies. We need not resolve the question here because, as we
explain, we find no preemption even without a presumption.”) (internal citations omitted).
42 P.L. 109-13, Div. B, §202, 119 Stat. 312-315 (May 11, 2005) (codified, as amended, at 49 U.S.C. §30301 note). Less
than a year prior to the enactment of the REAL ID Act, the Intelligence Reform and Terrorist Prevention Act had
required the promulgation of minimum standards for the acceptance of state driver’s licenses and other forms of ID by
federal agencies. P.L. 108-458, §7211, 118 Stat. 3825 (Dec. 17, 2004). These requirements were repealed and replaced
by provisions of the REAL ID Act. P.L. 109-13, Div. B, §205. The Intelligence Reform and Terrorist Prevention Act
had repealed and replaced earlier minimum standards requirements contained in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996. P.L. 104-208, div. C, §656, 110 Stat. 3009-716 to 3009-719 (Sept. 30, 1996)
(already partially repealed by the Department of Transportation and Related Agencies Appropriations Act, 2000, P.L.
106-69, §355, 113 Stat. 1027 (Oct. 9, 1999), discussed below).
43 P.L. 109-13, Div. B, §202, 119 Stat. 312-315 (codified, as amended, at 49 U.S.C. §30301 note). For purposes of the
act’s requirements, an official purpose “includes but is not limited to accessing Federal facilities, boarding federally
regulated commercial aircraft, entering nuclear power plants, and any other purposes that the Secretary [of the
Department of Homeland Security] shall determine.” Id. at §201(3).
For more extensive discussion of the REAL ID Act’s requirements, see archived CRS Report RL34430, The REAL ID
Act of 2005: Legal, Regulatory, and Implementation Issues, by former CRS attorney Todd B. Tatelman. Questions
about its content can be directed to Alissa Dolan.
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• has a pending or approved application for temporary protected status in the
United States;
• has approved deferred action status; or
• has a pending application for adjustment of status to that of an alien lawfully
admitted for permanent residence in the United States or conditional permanent
resident status in the United States.44
In satisfying the REAL ID Act’s standards, a state may only issue a temporary driver’s license or
ID card to an applicant who provides documentation that he or she falls under one of the latter
five categories listed above. This license or ID must either (1) be valid only for the period of time
that the alien is authorized to stay in the United States, or (2) expire within one year of its
issuance, if the alien is authorized to stay within the United States for an indefinite period.45
The initial deadline for compliance with REAL ID Act requirements was May 11, 2008—three
years after the act’s date of enactment. However, the act permits the Secretary of the Department
of Homeland Security (DHS) to extend the deadline for a state to comply with the act’s minimum
standard requirements, provided that the state has provided DHS with “an adequate justification
for noncompliance.”46 The Secretary of DHS has extended this deadline on a few occasions, and
has also deferred enforcement of the act with respect to federal recognition of non-compliant state
IDs.47 As of the date of this report, a majority of states and territories have either been deemed
compliant with the act’s requirements by DHS or have been granted an extension to achieve
compliance.48 A few states and territories do not currently have an extension in effect, and are not
deemed to be in compliance with the act.49 On December 20, 2013, DHS announced a timeline
for the implementation of the act’s requirements through a “phased enforcement plan,” under
which federal agencies shall begin restricting their acceptance of IDs for official purposes from
noncompliant states and territories.50
The second statute, the Personal Responsibility and Work Opportunity Reconciliation Act
(PRWORA) of 1996, as amended, generally bars state and local governments from providing
“state and local public benefits” to unlawfully present aliens unless the state enacts legislation

44 P.L. 109-13, div. B, at §202(b)(2)(B).
45 Id. at §202(b)(2)(C). See also 6 C.F.R. §37.21.
46 Id. at §205(b).
47 See Department of Homeland Security, Minimum Standards for Driver’s Licenses and Identification Cards
Acceptable by Federal Agencies for Official Purposes, 73 Fed. Reg. 5272-01 (Jan. 29, 2008) (providing process for
states to seek extension of deadline for REAL ID Act compliance from May 11, 2008 until May 11, 2011); 76 Fed.
Reg. 12269-01 (March 11, 2011) (extending deadline to January 15, 2013); Department of Homeland Security, Press
Release, DHS Determines 13 States Meet REAL ID Standards (Dec. 20, 2012) (announcing “temporary deferment”
allowing federal agencies to accept IDs issued from states that were not in compliance with the REAL ID Act),
available at https://www.dhs.gov/news/2012/12/20/dhs-determines-13-states-meet-real-id-standards.
48 Department of Homeland Security, REAL ID Enforcement in Brief (Dec. 20, 2013) (hereinafter “REAL ID Phased
Enforcement Plan”) available at http://www.dhs.gov/sites/default/files/publications/real-id-enforcement-in-brief-
20140205.pdf. See also CRS Legal Sidebar WSLG824, The REAL ID Act: Enforcement at Last?, by Alissa M. Dolan.
49 REAL ID Phased Enforcement Plan, supra footnote 48. Three of the 14 non-compliant states and territories issue
“Enhanced Driver’s Licenses,” which federal agencies may continue to accept for official purposes. Id.
50 Id.
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that “affirmatively provides” for their eligibility,51 and defines state and local public benefit to
mean the following:
(A) any grant, contract, loan, professional license, or commercial license provided by an
agency of a State or local government or by appropriated funds of a State or local
government; and (B) any retirement, welfare, health, disability, public or assisted housing,
postsecondary education, food assistance, unemployment benefit, or any other similar benefit
for which payments or assistance are provided to an individual, household, or family
eligibility unit by an agency of a State or local government or by appropriated funds of a
State or local government.52
PRWORA also required, as part of its provisions to improve child support enforcement, that states
record applicants’ Social Security numbers—which unlawfully present aliens generally cannot
obtain53—on applications for commercial driver’s licenses.54 The Balanced Budget Act of 1997
extended this requirement to all driver’s licenses.55 However, this provision has reportedly been
construed as mandating that states have procedures which require individuals to furnish “any
Social Security Number [they] may have” when applying for driver’s licenses, not as “requiring
that an individual have a social security number as a condition of receiving a license.”56 Separate
provisions in a companion measure to PRWORA, the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) of 1996, would have barred federal agencies from accepting, for
“any identification-related purpose,” driver’s licenses or other state-issued ID that did not contain
a Social Security number that could be read visually or electronically, among other things.57
However, these provisions of IIRIRA were repealed in 1999.58

51 For further discussion of what a state must do to “affirmatively provide” for unlawfully present aliens’ eligibility, see
CRS Report R43221, Noncitizen Eligibility for Public Benefits: Legal Issues, by Kate M. Manuel, at page 26.
52 8 U.S.C. §1621. PRWORA expressly excludes certain things from these definitions (e.g., professional or commercial
licenses for nonimmigrants whose visas are related to U.S. employment). See 8 U.S.C. §1621(c)(2)-(3).
53 20 C.F.R. §422.104(a) (“We can assign you a social security number if ... you are: (1) [a] United States citizen; or (2)
[a]n alien lawfully admitted to the United States for permanent residence or under other authority of law permitting you
to work in the United States ...; or (3) [a]n alien who cannot provide evidence of alien status showing lawful admission
to the U.S., or an alien with evidence of lawful admission but without authority to work in the U.S., if the evidence
described in §422.107(e) does not exist, but only for a valid nonwork reason.”). Currently, the need for a Social
Security number to obtain a driver’s license does not constitute a “valid nonwork reason,” although Social Security
numbers were once assigned for this reason. See Iyengar v. Barnhart, 281 F. Supp. 2d 38 (D.D.C. 2003) (change in
policy).
54 P.L. 104-193, §317, 110 Stat. 2220-21 (Aug. 22, 1996) (codified, as amended, at 42 U.S.C. §666(a)(13)).
55 P.L. 105-33, §5536, 111 Stat. 629-30 (Aug. 5, 1997).
56 Nat’l Council of La Raza, Driver’s License Fact Sheet: Ensuring Immigrant Access to Driver’s Licenses:
Alternatives to Social Security Number Requirements (quoting David Gray Ross, U.S. Department of Health and
Human Services), quoted in Alexander L. Mounts, A Safer Nation?: How Driver’s License Restrictions Hurt
Immigrants & Noncitizens, Not Terrorists, 37 IND. L. REV. 247, 255 (2003). See Social Security Administration, Social
Security for Non-Citizens (Aug. 2013) (noting that lawfully admitted noncitizens “can get many benefits and services
without a Social Security Number. You do not need a number to get a driver’s license ... ”), available at
http://www.ssa.gov/pubs/EN-05-10096.pdf.
57 P.L. 104-208, Div. C., §656(b), 110 Stat. 3009-716 to 3009-719 (Sept. 30, 1996).
58 Department of Transportation and Related Agencies Appropriations Act, 2000, P.L. 106-69, §355, 113 Stat. 1027
(Oct. 9, 1999).
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Denying Driver’s Licenses
and Other State-Issued ID
Several states have adopted measures that bar unlawfully present aliens from obtaining driver’s
licenses and other state-issued ID. Sometimes, the prohibition is explicit, as is the case with
Arizona, which has enacted legislation barring the state Motor Vehicle Division from issuing or
renewing a license or ID to a “person who does not submit proof satisfactory to the department
that the applicant’s presence in the United States is authorized under federal law.”59 In other
cases, the denial may be effectuated by requiring that applicants for driver’s licenses provide
Social Security numbers,60 which generally cannot be issued to unlawfully present aliens.61 Legal
challenges have been brought against both types of measures on the grounds that they violate the
Equal Protection Clause by abridging the fundamental right to interstate travel and impermissibly
distinguishing between aliens and citizens. Challenges have also been brought claiming that these
measures are per se preempted because they regulate immigration and impliedly preempted by
the REAL ID Act. To date, these legal challenges have generally failed.62 The one apparent
exception involves challenges to recent state practices of issuing driver’s licenses to some, but not
all, aliens granted deferred action or employment authorization documents (EADs) by the federal
government.63
Equal Protection
In the decisions published to date, courts have generally rejected the argument that denying
driver’s licenses to unlawfully present aliens runs afoul of the Equal Protection Clause.64

59 ARIZ. REV. STAT. §28-3153(D).
60 See, e.g., IND. CODE ANN. §9-24-9-2(a)(6) (generally requiring applicant’s for driver’s licenses to provide either (1) a
valid Social Security number, or (2) verification of the applicant’s ineligibility to be issued a Social Security number,
and identity and lawful status).
61 See supra note 53.
62 See, e.g., National Coalition of Latino Clergy, Inc. v. Henry, No. 07-CV-613-JHP, 2007 U.S. Dist. LEXIS 91487
(Dec. 12, 2007) (court noting, but not discussing, plaintiffs’ constitutional challenges); John Doe No. 1 v. Georgia
Dep’t of Public Safety, 147 F. Supp. 2d 1369 (N.D. Ga. 2001); Doe v. Edgar, No. 88 C 579, 1989 U.S. Dist. LEXIS
9498 (N.D. Ill., Aug. 2, 1989); Lopez v. U.S. INS, No. 80-JM-375, 1983 U.S. Dist. LEXIS 13250 (D. Colo., Sept. 29,
1983) (noting, but not addressing, plaintiff’s constitutional challenges to a Colorado law restricting the issuance of
driver’s licenses to unlawfully present aliens); Castillo-Solis v. Georgia, 740 S.E.2d 583 (Ga. 2013); People v. Quiroga-
Puma, 884 N.Y.S.2d 567 (2009), rev’g, 848 N.Y.S.2d 853 (Justice Court of New York, Village of Westbury, Nassau
County, 2007); Cubas v. Martinez, 838 N.Y.S.2d 815 (N.Y. 2007), rev’g, 233 N.Y.L.J. 93 (Supreme Court of New
York, New York County, 2005); Villegas v. Silverman, 832 N.E.2d 598, 601 (Ind. App. 2005) (noting that the trial
court, in an unpublished opinion, had rejected the plaintiffs’ constitutional challenges); Sanchez v. Iowa, 692 N.W.2d
812 (Iowa Sup. 2005).
63 See, e.g., Az. Dream Act Coalition v. Brewer, 945 F. Supp. 2d 1049 (D. Az. 2013); Saldana v. Lahm, No.
4:13CV3108, 2013 U.S. Dist. LEXIS 148209 (D. Neb., Oct. 11, 2013). Although a somewhat distinct issue from the
permissibility of states restricting unlawfully present aliens’ access to driver’s licenses, one court has held that federal
immigration law preempts state criminal laws which target unlawfully present aliens who operate a motor vehicle
without possessing documentation demonstrating lawful presence in the United States. State v. Sarrabea, 126 So.3d 453
(La. 2013). But see United States v. Alabama, 691 F.3d 1269, 1299 (11th Cir. 2012) (upholding state criminal sanction
against unlawfully present aliens who unlawfully apply for a driver’s license against challenge that law was preempted
by federal law, including provisions of PRWORA and the REAL ID Act), cert. denied, Alabama v. United States, 133
S. Ct. 2022 (2013).
64 In what is perhaps the most notable exception to this general rule, a county court in New York found, sua sponte,
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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.65 Indeed, one court even questioned whether unlawfully present
aliens have a “fundamental right to travel about this country when their mere presence here is a
violation of federal law,”66 and it is a federal crime to knowingly transport such aliens.67
Courts have also expressly declined to extend the same type of heightened scrutiny applied in
Plyler to state measures denying driver’s licenses to unlawfully present aliens. Those advocating
for such an extension have noted that the “minor children,” whose wellbeing the Court was
concerned with in Plyler, are now adults,68 and argue that denying them a driver’s license
marginalizes them socioeconomically, just like denying them a “basic education” would have
done.69 Courts, however, have rejected these arguments on the grounds that “the harm caused by
the deprivation of a drivers [sic] license, while not insubstantial, pales in comparison with the
harm caused by the denial of a basic education.”70 Several courts have also distinguished the
plaintiffs, as adults, from the unlawfully present minor children denied access to primary and
secondary education in Plyler.71 Courts have further noted a range of “legitimate” government

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when dismissing the charge of unlicensed operation of a motor vehicle brought against a defendant, that the state’s
restrictions upon the issuance of driver’s licenses to unlawfully present aliens violates the Equal Protection clause. See
People v. Quiroga-Puma, 848 N.Y.S.2d 853 (2005). However, this decision was reversed on appeal. See 884 N.Y.S.2d
567 (2007).
65 John Doe No. 1, 147 F. Supp. 2d at 1375 (“[D]enial of a single mode of transportation does not rise to the level of a
violation of the fundamental right to interstate travel.”); LULAC v. Bredesen, No. 3:04-0613, 2004 U.S. Dist. LEXIS
26507, at *12, aff’d, LULAC, 500 F.3d at 535.
66 See, e.g., John Doe No. 1, 147 F. Supp. 2d at 1373 (construing Edwards v. California, 314 U.S. 160 (1941), to have
derived the right to travel from citizenship, and thus finding that “[i]t would be curious indeed if the law gave illegal
aliens a fundamental right to travel about this country”). In a few cases, courts also found that the plaintiffs lacked
standing to challenge state measures denying them driver’s licenses because of their unlawful status. See National
Coalition of Latino Clergy, 2007 U.S. Dist. LEXIS 91487, at *28 (characterizing this as a “narrow, prudential
limitation on standing”); Villegas, 832 N.E.2d at 607 (noting that the district court had found that the plaintiff could not
challenge a measure that generally required license applicants to provide Social Security numbers because he had
previously supplied a false number and thus had “unclean hands”).
67 John Doe No. 1, 147 F. Supp. 2d at 1374 (citing 8 U.S.C. §1324(a)(1)(A)(ii)).
68 See, e.g., A Yes or No Answer, supra note 2, at 465 (“[T]he children in Plyler are inevitably middle-aged adults by
now and, although they were afforded an education and most likely ‘Americanized’ in the process, are now unable to
function as normal adults because of their lack of a driver’s license.”); Kari E. D’Ottavio, Deferred Action for
Childhood Arrivals: Why Granting Driver’s Licenses to DACA Beneficiaries Makes Constitutional and Political Sense,
72 MD. L. REV. 931, 954 (2013) (advocating the application of intermediate scrutiny to such measures).
69 See, e.g., María Pabón López, More Than a License to Drive: State Restrictions on the Use of Driver’s Licenses by
Noncitizens, 29 S. ILL. U. L.J. 91, 123-24 (2004) (“The concern with the creation of an ‘underclass’ still holds true in
the case of driver’s license denials, because it is very difficult for an employee to obtain any special responsibility at his
or her place of employment without reliable transportation.”); Az. Dream Act Coalition v. Brewer, No. 02:12-cv-
02546-DGC-PHX, Memorandum in Support of Motion for Preliminary Injunction, at 16 (D. Az., filed Dec. 12, 2012)
(copy on file with the authors) (noting that “the ability to work is often dependent on the ability to drive”).
70 See, e.g., Doe, 1989 U.S. Dist. LEXIS 9498, at *11. The court here also took the view that distinctions involving
unlawfully present aliens do not involve a suspect classification because unlawful status is not “immutable.” Id. See
also LULAC, 2004 U.S. Dist. LEXIS 26507, at *11 (“Membership in this class [i.e., unlawfully present aliens and
lawful nonimmigrants] is voluntary.”).
71 Doe, 1989 U.S. Dist. LEXIS, at *11; Cubas v. Martinez, 819 N.Y.S.2d 10, 35 (N.Y. App. Div. 2006). This is
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interests served by barring the issuance of driver’s licenses and other forms of ID to unlawfully
present aliens, including the state (1) not allowing itself to be used to “facilitat[e] the concealment
of illegal aliens”;72 (2) preserving scarce resources by not issuing licenses to persons who may be
deported;73 and (3) assuring the integrity of identity documents.74
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. For example, a federal
district court in Arizona recently found that the State of Arizona’s practice of denying driver’s
licenses to aliens granted deferred action and employment authorization documents (EADs)
through the Obama Administration’s Deferred Action through Childhood Arrivals (DACA)
initiative, but issuing them to other aliens granted deferred action and EADs by the executive
branch, cannot withstand rational basis review.75 The executive branch has long had a practice of
granting deferred action—a type of relief from removal—to unlawfully present aliens who are not
a priority for removal.76 Aliens granted deferred action lack legal immigration status, but
generally do not accrue additional unlawful presence while covered by a grant of deferred
action,77 and they may be granted EADs if they establish an “economic necessity” for
employment.78
The DACA initiative has prompted resistance from some who are concerned about the apparent
granting of deferred action to a group of people, rather than on an individual basis, among other
things.79 In 2012, the governor of Arizona issued an executive order tasking state agencies with

(...continued)
potentially significant because the Plyler Court distinguished the unlawfully present alien children from their parents,
in part, on the grounds that children “can affect neither their parents’ conduct nor their own status,” while their parents,
as adults, have “the ability to conform their conduct to societal norms, and presumably the ability to remove themselves
from the State’s jurisdiction.” Plyler, 457 U.S. at 220.
72 John Doe No. 1, 147 F. Supp. 2d at 1376 (“The State of Georgia has a legitimate interest in not allowing its
governmental machinery to be a facilitator for the concealment of illegal aliens.”); Sanchez, 692 N.W.2d at 818
(similar). The interest recognized here would appear to be related to concerns that possession of driver’s licenses can
“creat[e] an appearance of lawful presence.” Lopez, 758 F.2d at 1393. The court in Sanchez noted other interests cited
by the state—namely, limiting its services to citizens and legal residents; restricting licenses to citizens and LPRs
because of concerns that those subject to immediate deportation will not be financially responsible for accidents; and
discouraging “illegal immigration”—but the court did not address whether these constitute “legitimate” interests, since
it found that the first interest (i.e., not allowing “governmental machinery” to facilitate concealment) sufficed.
73 John Doe No. 1, 147 F. Supp. 2d at 1376 (also noting that the restrictions promote the “safety of the economy” in
Georgia by restricting the issuance of licenses to those who are not subject to immediate deportation and thus will be
financially responsible for property damage or personal injury due to automobile accidents).
74 Doe, 1989 U.S. Dist. LEXIS, at *12-*13 (state argued that the measure promotes supervision and safety on the
highways); Cubas, 870 N.E.2d at 136, aff’g, Cubas, 819 N.Y.S.2d at 39. See also LULAC, 500 F.3d at 536 (noting that
issuing CFDs, instead of driver’s licenses, to unlawfully present aliens promotes homeland security by indicating to
third-parties that state does not vouch for the card holders’ identity).
75 Az. Dream Act Coalition v. Brewer, 945 F. Supp. 2d 1049 (D. Az. 2013).
76 See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-84 (1999) (noting this practice).
77 See, e.g., U.S. Citizenship & Immigr. Servs., Frequently Asked Questions, updated Jan. 18, 2013, available at
http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-
questions (“Although action on your case has been deferred and you do not accrue unlawful presence (for admissibility
purposes) during the period of deferred action, deferred action does not confer any lawful status.”).
78 8 C.F.R. §274a.12(c)(14).
79 See, e.g., Peter Margulies, Taking Care of Immigration Law: Presidential Stewardship, Prosecutorial Discretion,
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making any changes “necessary to prevent [DACA beneficiaries] from obtaining eligibility,
beyond [that] available to any person regardless of lawful status, for any taxpayer-funded public
benefits and state identification, including a driver’s license.”80 This order, in turn, prompted the
Arizona Motor Vehicle Division to distinguish between those granted EADs as a result of DACA,
and other aliens without legal immigration status who were granted EADs, in the issuance of
driver’s licenses.81 The state attempted to justify this distinction, in part, on the grounds that
issuing licenses to DACA beneficiaries could lead to “improper access” to federal and state public
benefits, and that the state would have to cancel their licenses if the DACA initiative were
ended.82 However, the reviewing district court found that none of the justifications put forth by
the state constituted a legitimate basis for the distinction between DACA beneficiaries and other
unlawfully present aliens granted EADs.83 A state court in Nebraska has suggested that it is
similarly skeptical as to whether that state’s practice of denying licenses to those granted deferred
action through DACA, while issuing licenses to other aliens with deferred action status, has a
“rational basis.”84
The federal court decisions concerning the Arizona and Nebraska restrictions appear to be limited
to the facts and circumstances of the cases, and should not be taken to mean that every state
measure that bars the issuance of driver’s licenses to unlawfully present aliens necessarily
violates the Equal Protection Clause. Indeed, Arizona responded to the district court’s decision by
modifying its practices so as to deny licenses to all aliens granted deferred action, not just DACA
beneficiaries.85 This modified practice could potentially play a role in the plaintiffs’ appeal of the
district court’s decision not to preliminarily enjoin Arizona’s practice of denying licenses to
DACA beneficiaries.86
Preemption
The courts have also generally rejected the view that state measures denying driver’s licenses to
unlawfully present aliens constitute an impermissible regulation of immigration that is per se
preempted. In challenges to state restrictions on the issuance of driver’s licenses to unlawfully

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and the Separation of Powers, 94 B.U. L. REV. 105 (2014); Robert J. Delahunty & John C. Yoo, The Obama
Administration, the DREAM Act, and the Take Care Clause, at 3, available at http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2144031; Testimony of Senator Michael S. Lee Before the House Committee on the Judiciary, “The
Obama Administration’s Abuse of Power,” Sept. 12, 2012, available at http://judiciary.house.gov/hearings/
Hearings%202012/Lee%2009122012.pdf.
80 Az. Dream Act Coalition, 945 F. Supp. 2d at 1055 (quoting Arizona Executive Order 2012-06 (Aug. 15, 2012)).
81 Id.
82 Id. at 1071-72.
83 Id. at 1072.
84 Saldana, 2013 U.S. Dist. LEXIS 148209, at *18 (“If [the plaintiff’s] allegation [that the state issued driver’s licenses
to other persons with deferred action status, but not DACA beneficiaries] is true, it is not clear what, if any, rational
basis supports this different treatment.”). Nebraska’s denial of driver’s licenses to DACA beneficiaries has also been
challenged on the grounds that it violates the state’s Administrative Procedure Act and the Nebraska Constitution. See
Hernandez v. Heineman, No. CI 13-2124, Order (Lancaster County, Nebraska, District Court, Jan. 22, 2014) (copy on
file with the authors).
85 See Defendants’ Notice of Revision to Policy 16.1.4 Concerning Acceptance of Employment Authorization Cards
(filed, D. Az., Sept. 17, 2013) (copy on file with the authors).
86 See Az. Dream Act Coalition v. Brewer, No. 13-16248, Appellants’ Opening Brief (9th Cir., filed July 15, 2013)
(copy on file with the authors).
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present aliens, plaintiffs have sometimes argued that these restrictions are regulations of
immigration because they purportedly seek to exclude aliens from the community and thus
attempt to determine “who should or should not be admitted into the country, and the conditions
under which ... entrant[s] may remain.”87
For example, in 2011, the U.S. Department of Justice (DOJ) challenged provisions of Alabama’s
H.B. 56 that barred unlawfully present aliens from obtaining or renewing driver’s licenses. The
DOJ initially asserted that Alabama had “essentially given unlawful aliens the choice” between
not obtaining licenses or other services from the state; obtaining such licenses and services and,
thereby, committing a felony; or “leaving Alabama.”88 Other plaintiffs and commentators have
made similar arguments against the Alabama law and comparable enactments in other states,
suggesting that restricting the issuance of driver’s licenses to unlawfully present aliens reflects
the intent to exclude them from the United States.89
This line of argument has generally been rejected. Several courts have indicated that they view
such restrictions as affecting purely local matters, rather than constituting an attempt to regulate
who may enter or remain in the United States.90 One court took the view that, in addition to
furthering legitimate state interests, a challenged state measure mirrored and complimented
“federal objectives by denying … driver’s licenses to those who are in this country illegally
according to federal law.”91
Nonetheless, an argument could be made that particular state measures denying driver’s licenses
to unlawfully present aliens are per se preempted as regulations of immigration, if those measures
rely upon state rather than federal definitions of who is unlawfully present, or task state officials
with determining aliens’ status. State or local measures that do either of these two things (i.e.,
establish their own classifications for aliens, or have state officials determine aliens’ status
independently from federal authorities) have been found to constitute impermissible regulations
of immigration in other contexts.92
In addition to per se challenges, some plaintiffs and commentators have also alleged that state
measures denying driver’s licenses to unlawfully present aliens are preempted by federal statutes,

87 Cf. De Canas, 424 U.S. at 355.
88 United States v. Alabama, No. 11-J-2746-S, Plaintiff’s Motion for Preliminary Injunction (N.D. Ala., filed Aug. 1,
2011) (copy on file with the authors).
89 See, e.g., Appellants’ Opening Brief, supra 86, at 14-19; A Yes or No Answer, supra note 4, at 458-59.
90 United States v. Rivera, 516 F.3d 500, 503 (6th Cir. 2008) (expressing the view that CFDs are “not related to
naturalization, citizenship, or legal status”); LULAC, 2004 U.S. Dist. LEXIS 26507, at *21 (similar); Castillo-Solis, 740
S.E.2d at 763 (similar); Louisiana v. Gonzelez-Perez, 2008 La. App. LEXIS 272, at *16 (La. Ct. App., Feb. 27, 2008)
(“[T]he statute in question is not a constitutionally impermissible regulation of immigration, because it does not involve
a state determination of who should or should not be admitted into the country or the conditions under which a legal
entrant may remain.”).
91 Doe No. 1, 147 F. Supp. 2d at 1376. See also LULAC, 2004 U.S. Dist. LEXIS 26507, at *21.
92 See, e.g., Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013), cert. denied, City of Hazleton v. Lozano, 2014
U.S. LEXIS 1740 (Mar. 3, 2014) (restrictions on renting to unlawfully present aliens preempted, in part, because
“[d]eciding which aliens may live in the United States has always been the prerogative of the federal government”);
LULAC v. Wilson, 908 F. Supp. 755, 771 (C.D. Cal. 1995) (finding that provisions of California’s Proposition 187 that
required state officials to determine aliens’ immigration status were per se preempted); Montana Immigrant Justice
Alliance v. Bullock, No. BDV-2012-1042, Order on Petition for Preliminary Injunction (Mt. First Judicial Dist. Ct.,
filed Mar. 26, 2013) (copy on file with the authors) (requiring the state to rely on federal determinations as to whether
individual are lawfully present in the United States in determining eligibility for “state services”).
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including the REAL ID Act.93 Thus far, however, the few courts that have considered this
argument have not been persuaded. Notably, in its 2012 decision in United States v. Alabama, the
U.S. Court of Appeals for the Eleventh Circuit (“Eleventh Circuit”) rejected the DOJ’s
preemption arguments against provisions of Alabama’s H.B. 56, which barred aliens “not
lawfully present in the United States” from obtaining driver’s licenses and made it a criminal
offense for such aliens to apply for licenses.94 The appellate court held that these provisions were
not facially preempted by federal law, including the REAL ID Act.95 In particular, the Eleventh
Circuit emphasized that the REAL ID Act “encouraged individual states to require evidence of
lawful status as a prerequisite to issuing a driver’s license or identification card to an applicant.”96
The Eleventh Circuit did raise the possibility of tension between the state law and applicable
federal statutes. It noted, for example, a possible incongruence between the category of aliens
ineligible to receive a license under Alabama law and the standards for federal acceptance of
driver’s licenses provided in the REAL ID Act. However, the court believed the Alabama law
“could be construed to avoid this problem, and if this issue does arise, it may be more
appropriately addressed in the context of an as-applied challenge.”97
The appellate court also rejected the argument that the Alabama statute is inconsistent with
federal law because it criminalizes conduct that is not subject to criminal penalty under federal
statute. The Eleventh Circuit viewed this alleged conflict as a “hypothetical or potential” one,
since H.B. 56 criminalizes conduct “that appears highly unlikely to occur, given that Alabama has
chosen not to make [driver’s licenses and certain benefits] available [to unlawfully present aliens]
in the first place.”98 More broadly, the Eleventh Circuit interpreted the REAL ID Act as not
purporting to regulate “driver’s licenses, identification cards, and unlawfully present aliens,” and
leaving the field open “for the states to adopt different policies concerning this subject.”99

93 See, e.g., Saldana, 2013 U.S. Dist. LEXIS 148209, at *15 (rejecting plaintiff’s argument that the REAL ID Act
preempts Nebraska’s policy of denying licenses to DACA beneficiaries by noting that the act expressly establishes
“minimum standards” that state IDs must comply with in order to be recognized by federal agencies, and declaring that
“[n]othing in the Act prevents states from imposing standards or requirements that exceed those set out in the Act”);
Deferred Action for Childhood Arrivals, supra note 68, at 958 (“The REAL ID Act ... provides a promising foundation
for a pre-emption argument in the case of state driver’s license restrictions on DACA beneficiaries.”); John K. Blake,
Jr., Examining Louisiana’s Prevention of Terrorism on the Highways Act, 35 S.U. L. REV. 223, 256-58 (2007)
(discussing a construction of the REAL ID Act as preempting certain state restrictions on aliens driving without proof
of lawful immigration status). On the other hand, at least one commentator has suggested that courts may be more
likely to defer to states’ determinations regarding the issuance of driver’s licenses to unlawfully present aliens given the
enactment of the REAL ID Act. See A Yes or No Answer, supra note 4, at 471.
94 691 F.3d 1269 (11th Cir. 2012), cert. denied, 133 S. Ct. 2022 (2013).
95 The Eleventh Circuit also addressed whether these provisions of H.B. 56 are preempted by PRWORA, but its
discussion of PRWORA seems to have centered upon professional licenses, not driver’s licenses. Id. at 1298.
96 Id.
97 Id. But see Saldana, 2013 U.S. Dist. LEXIS 148209, at *15 (finding that Nebraska’s practice of denying driver’s
licenses to DACA beneficiaries is not preempted by the REAL ID Act, even though the act permits the issuance of
licenses to those granted deferred action, on the grounds that “nothing in the Act requires states to issue driver’s
licenses to anyone”).
98 Alabama, 691 F.3d at 1301 n. 27.
99 Id. at 1299.
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Granting Driver’s Licenses
and Other State-Issued ID
In contrast to states seeking to deny unlawfully present aliens driver’s licenses (see “Denying
Driver’s Licenses and Other State-Issued ID”), several states have adopted measures that would
permit unlawfully present aliens to obtain driver’s licenses. Sometimes, the state permits such
aliens to obtain a license that looks like those issued to citizens, LPRs, and eligible lawful
nonimmigrants, as New Mexico does.100 At other times, the state issues licenses to unlawfully
present aliens that are visually distinguishable from the licenses issued to U.S. citizens and
foreign nationals with lawful immigration status, although the state does not purport to restrict
their usage for identification purposes.101
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.102 However,
such claims do not appear to have resulted in any judicial holdings or findings on the issue,
perhaps because of limitations on who has standing to challenge such measures.103 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;104 (2) the REAL ID Act contemplates states issuing driver’s licenses
and other ID that are not recognized by federal agencies;105 and (3) PROWRA expressly permits
states to provide public benefits to unlawfully present aliens by enacting legislation that
affirmatively provides for their eligibility.106

100 N.M. STAT. ANN. §66-5-9(B) (2014).
101 See, e.g., Illinois Sec’y of State, Driver Services: New Temporary Visitor Driver’s License (TVDL) for
Undocumented (Non-Visa Status) Individuals, available at http://www.cyberdriveillinois.com/departments/drivers/
TVDL/home.html (last accessed: Mar. 22, 2014). Congress has generally barred federal agencies from accepting any
licenses issued to unlawfully present aliens for “official purposes,” as previously noted, but the states that issue licenses
(as opposed to certificates for driving or driving privileges cards) to such aliens do not necessarily do so.
102 See sources cited, infra note 107.
103 Standing requirements, which are concerned with who is a proper party to raise a particular issue in the federal
courts, derive from Article III of the Constitution, which confines the jurisdiction of federal courts to actual “Cases”
and “Controversies.” U.S. Const., art. III, §2, cl. 1. The case-or-controversy requirement has long been construed to
restrict Article III courts to the adjudication of real, live disputes involving plaintiffs who have “a personal stake in the
outcome of the controversy.” Baker v. Carr, 369 U.S. 186, 204 (1962). Plaintiffs appearing before an Article III court
must generally show three things in order to demonstrate standing: (1) they have suffered an “injury in fact” that is
concrete and particularized; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) the injury
is likely to be redressed by a favorable decision. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
104 See supra notes 87-91 and accompanying text.
105 49 U.S.C. §30301 note; Louisiana v. Lopez, 948 So. 2d 1121, 1125 (La. App. 2006) (“[I]mplicit in the REAL ID act
is the federal recognition that states can legally issue driver’s licenses without a person being in a position to establish
his legal presence in the United States.”).
106 See supra note 51and accompanying text.
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Preempted as a Regulation of Immigration
Several commentators and at least one court (in non-binding dicta) have suggested that state
measures granting driver’s licenses to unlawfully present aliens are per se preempted because
such measures regulate immigration by legitimizing the presence of aliens whom the federal
government has not authorized to be present in the United States.107 Those making this argument
appear to be particularly concerned that driver’s licenses can be used in various everyday
transactions, from opening a bank account to obtaining employment, the successful performance
of which further integrates the unlawfully present alien into the community—and helps create an
appearance of lawful presence.108
However, the view that the issuance of driver’s licenses to unlawfully present aliens constitutes a
regulation of immigration does not appear to have been adopted in the holdings or findings of any
federal or state court. The only court to have espoused this characterization did so in dicta, in the
course of rejecting a challenge to a state measure that barred unlawfully present aliens from
obtaining driver’s licenses.109 Arguably, a court could reject a challenge to measures granting
driver’s licenses to unlawfully present aliens on the grounds that such a measure does not regulate
immigration (for example, by reasoning that state measures granting driver’s licenses to
unlawfully present aliens address purely local matters, not national ones).110
Preemption by the REAL ID Act
As previously discussed,111 the REAL ID Act, when fully implemented, will prohibit federal
agencies from recognizing a state driver’s license or other forms of state-issued ID for official
purposes unless unlawfully present aliens are ineligible to receive such documents.112 While some
might argue that the act broadly preempts states from issuing IDs to unlawfully present aliens,
these arguments seem difficult to maintain. To date, no court has held that the REAL ID Act

107 See, e.g., LULAC, 2004 U.S. Dist. LEXIS 26507, at *21 (rejecting plaintiffs’ preemption challenge to state
restriction on the issuance of driver’s licenses to unlawfully present aliens, and stating that “it is Plaintiffs who are
attempting to have the State regulate immigration by seeking to have the State issue an identification card that makes
illegal aliens and restricted or temporary aliens appear to have a status indistinguishable from citizens and lawful
permanent residents—a status that they have not sought, or are unable to obtain, from the federal government.”); Paul
Undocumented Workers, supra note 2, at 537 (2004) (“The driver license law [enacted by California in 2003, and then
repealed] attempted to set immigration policy by legitimizing state action (acquiring a driver license) by individuals
who by federal law were unlawfully in the nation (illegal immigrants).”); Moore Opposes Granting Licenses to
Undocumented Immigrants, available at http://www.wmrcdailynews.com/news-det.php?i=107&d=Moore-Opposes-
Granting-Licenses-to-Undocumented-Immigrants (last accessed: Mar. 22, 2014) (quoting a state senator as expressing
the view that “[g]ranting such a privilege to those who have not yet obtained immigration status would legitimize
unlawful presence”).
108 Undocumented Workers, supra note 2, at 538. Cf. Lopez, 758 F.3d at 1393 (characterizing a driver’s license as “one
of the most useful single items of identification for creating the appearance of lawful presence”); Jewish Community
Action v. Commn’r of Public Safety, 657 N.W.2d 604, 607 (Minn. App. 2003) (state Department of Public Safety
characterizing driver’s licenses as “‘gateway documents,’ which enable holders to establish ostensibly accurate and
legitimate identities and to gain privileges available only to people who can identify themselves through widely
accepted official documentation”).
109 LULAC, 2004 U.S. Dist. LEXIS 26507, at *21.
110 See supra note 90 and accompanying text.
111 See supra discussion at “Preemption.”
112 P.L. 109-13, Div. B., §202(b)(2)(C).
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preempts states from issuing driver’s licenses and other IDs to unlawfully present aliens.113 The
express language of the REAL ID Act does not purport to bar states from issuing driver’s licenses
to unlawfully present aliens. The legislative history of the act supports the view that the statute
was not intended to prohibit states from issuing IDs that do not comply with REAL Act
standards.114 Indeed, the act is directed primarily at federal agencies, and bars them from
accepting, “for any official purpose,” a state driver’s license or other ID card that does not satisfy
the act’s minimum standard requirements. 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.115
The nature of this requirement seems to indicate that states are not preempted from issuing forms
of identification that do not comply with the minimum standards established pursuant to the
REAL ID Act. Moreover, while the act requires that non-conforming IDs use a unique identifier
to alert federal officials that the document is not to be accepted for official purposes, the apparent
consequence of a state failing to comply with this requirement is not that the state will be
preempted from issuing IDs; rather, the consequence appears to be simply that the IDs that state
issues will not be recognized by federal agencies for official purposes
Preemption by PRWORA
At least one commentator has suggested that measures granting driver’s licenses to unlawfully
present aliens are preempted by PRWORA,116 but this appears unlikely given PRWORA’s
definition of state and local public benefits and its provisions expressly permitting states to enact
legislation that affirmatively provides for unlawfully present aliens’ eligibility for such benefits.

113 Cf. Alabama, 691 F.3d at 1299 (upholding against a preemption challenge to a state statute penalizing unlawfully
present aliens who apply for driver’s licenses, and broadly stating that “[t]he REAL ID Act ... does not purport to
comprehensively regulate driver’s licenses, identification cards, and unlawfully present aliens. Rather, it leaves the
field essentially open, giving room for the states to adopt different policies concerning this subject.”); Lopez, 948 So.
2d at 1125 (“[I]mplicit in the REAL ID act is the federal recognition that states can legally issue driver’s licenses
without a person being in a position to establish his legal presence in the United States.”).
114 Conference Report for Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and
Tsunami Relief, 2005, H.REPT. 109-72, at 177 (“[The REAL ID Act] states that the law is binding on Federal
agencies—not the states. Consequently, this Act does not directly impose federal standards with respect to states’
issuance of driver’s licenses and personal identification cards. The application of the law is indirect, and hence states
need not comply with the listed standards. However, states would nevertheless need to adopt such standards and
modify any conflicting laws or regulations in order for such documents to be recognized by federal agencies for official
purposes.”).
115 P.L. 109-13, Div. B, §202(d)(11).
116 Undocumented Workers, supra note 2, at 538-39.
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As an initial matter, it is unclear that PRWORA’s definition of state and local public benefit
encompasses the issuance of driver’s licenses to unlawfully present aliens. This definition has two
prongs, one of which includes “any grant, contract, loan, professional license, or commercial
license provided by an agency of a State or local government or by appropriated funds of a State
or local government.”117 The other includes
any retirement, welfare, health, disability, public or assisted housing, postsecondary
education, food assistance, unemployment benefit, or any other similar benefit for which
payments or assistance are provided to an individual, household, or family eligibility unit by
an agency of a State or local government or by appropriated funds of a State or local
government.118
Driver’s licenses would not appear to be public benefits under the first prong, insofar as that
prong applies only to professional and commercial licenses, and “ordinary” (i.e., noncommercial)
driver’s licenses would not appear to be encompassed by the everyday meaning of either
“professional license” or “commercial license.”119
An argument could also be made that driver’s licenses are not state and local public benefits
under the second prong of PRWORA’s definition because they do not entail “payments” or
“assistance”—as that term has generally been construed—to individuals or households.120
Driver’s licenses are issued by state agencies using appropriated funds, and an argument could be
made that their issuance “assists” unlawfully present aliens by making it easier for them to
engage in everyday transactions.121 However, courts have generally declined to view “assistance”
as encompassing everything that could benefit unlawfully present aliens in any way, instead
construing it to refer only to services that “assist people with economic hardship,”122 and could
“create [an] incentive for illegal immigration.”123 Moreover, even if driver’s licenses were viewed
as public benefits for purposes of PRWORA, PRWORA expressly authorizes states to grant
public benefits to unlawfully present aliens by subsequently enacting legislation that affirmatively
provides for their eligibility.124 Thus, the only state actions that would potentially be barred by
PRWORA would seem to be those that are not pursuant to state legislation enacted subsequent to
PRWORA.125

117 8 U.S.C. §1621(c)(1)(A).
118 8 U.S.C. §1621(c)(1)(B).
119 Cf. FDIC v. Meyer, 510 U.S. 471, 476 (1994) (In the absence of a statutory definition, “we construe a statutory term
in accordance with its ordinary or natural meaning.”).
120 State of Colorado, Dep’t of Law, Opinion No. 12-04, June 19, 2012, at 5 (copy on file with the authors)
(“Assistance is defined as ‘aid’ or ‘help.’ It is quite clear that Metro State’s new discounted tuition would be a
significant aid or help to students who qualify. After all, the very purpose of Metro State’s plan [to provide discounted
tuition to unlawfully present aliens] ... is to make attending college easier for certain students (that is, to “help” them
attend college).”).
121 See supra note 108.
122 Rajeh v. Steel City Corp., 813 N.E.2d 697, 707 (Ohio App. 2004) (workers’ compensation not a public benefit for
purposes of PRWORA because it is a “substitutionary remedy” for a negligence suit).
123 County of Alameda v. Agustin, 2007 Cal. App. LEXIS 7665, at *10 (1st App. Dist., Div. One, Sept. 24, 2007)
(rejecting the argument that “child collection support services” and the issuance of a court order requiring child support
payments constituted state public benefits and thus cannot be provided to an unlawfully present alien in the absence of
a state law that expressly provided for unlawfully present aliens’ eligibility).
124 See 8 U.S.C. §1621(c)(1).
125 It should also be noted that at least one court has found that PRWORA does not bar states from delegating to
administrative agencies or local governments the authority to determine whether unauthorized aliens may be granted
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Granting Driver’s Certificates, But Not Licenses
A few states, seeking to promote traffic safety by screening drivers, but not wishing to issue
driver’s licenses to unlawfully present aliens, have adopted measures that permit such aliens to
obtain “Certificates for Driving” (CFDs) or “Driving Privilege Cards” (DPCs), but not driver’s
licenses. Utah is one such state, issuing DPCs to persons who cannot “provid[e] evidence of
lawful presence in the United States.”126 Tennessee formerly had a similar provision that
permitted “[p]ersons whose presence in the United States has [not] been authorized by the federal
government” to obtain CFDs.127 In both cases, the documents issued by the state expressly note,
on their face, that they are for driving purposes only, but not for ID purposes.128 This restriction is
arguably significant, in that driver’s licenses and other state-issued ID have been widely
recognized to play an important role in establishing identity for purposes of various everyday
transactions (e.g., opening bank accounts, obtaining employment).129 Partly because CFDs and
DPCs would not necessarily be recognized for such purposes, and partly because of the perceived
“stigma” associated with having a CFD or a DPC instead of a driver’s license,130 some have
alleged that these measures are impermissible, and that states must grant unlawfully present
aliens’ driver’s licenses like those that issued to citizens and LPRs.
These arguments were rejected by a federal district court in the case of League of United Latin
American Citizens [LULAC] v. Bredesen, 131in a ruling that was upheld by the U.S. Court of
Appeals for the Sixth Circuit (“Sixth Circuit’).132 In this case, the district court’s found that a
Tennessee measure, permitting unlawfully present aliens to obtain CFDs but not driver’s licenses,
did not run afoul of the Equal Protection and Supremacy Clauses.133 In so finding, the district
court held that (1) “illegal aliens” are not a “suspect class”; (2) heightened scrutiny, like that
applied in Plyler, is unwarranted because the aliens denied driver’s licenses “do[] not resemble
the class of children described in Plyler”; and (3) aliens’ right to travel is more limited than
citizens’ right.134
However, due in part to the unique nature of the state document at issue in the case, which
granted aliens documents that were valid for driving, but not for ID, the reviewing district court
touched upon issues not addressed in other decisions. For example, the district court expressly
rejected the argument that there is a “constitutional right to a state-issued identification card
acceptable to third-parties.”135 It also rejected the plaintiffs’ due process claim that the Tennessee

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particular benefits. See Kaider v. Hamos, 975 N.E.2d 667, 678 (Ill. App. 2012).
126 UTAH CODE ANN. §53-3-207(7)(a) (2014).
127 TENN. CODE ANN. §55-50-331(h) (2004). The Tennessee program was reportedly ended in 2007. See A Yes or No
Answer, supra note 4.
128 UTAH CODE ANN. §53-3-207(7)(b) (2014); TENN. CODE ANN. §55-50-102(6) (2004).
129 See supra note 7.
130 See License to Drive, supra note 4, at 212-13 (noting various commentators who have expressed such concerns);
More Than a License to Drive, supra note 69, at 103-04.
131 LULAC v. Bredesen, 2004 U.S. Dist. LEXIS 26507 (M.D. Tenn., Sept. 28, 2004).
132 LULAC v. Bredesen, 500 F.3d 523 (6th Cir. 2007).
133 See LULAC , 2004 U.S. Dist. LEXIS 26507 at *15, *22.
134 Id. at *10-*12.
135 Id. at *15. While the reviewing federal district court in another case, Fahy v. Commissioner, New Hampshire Dep’t
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measure created an unconstitutional irrebuttable presumption that aliens holding CFDs are
“threats to homeland security” because the plaintiffs’ failed to show that the state’s distinctions
between documents issued to unlawfully present aliens and other persons were not rationally
related to the state’s legitimate interest in promoting homeland security.136
The issuance of CFDs and DPCs to unlawfully present aliens has also been criticized by those
who would also deny driver’s licenses to unlawfully present aliens.137 However, such criticisms
do not appear to have resulted in legal challenges, and any such challenges to the granting of
CFDs and DPCs to unlawfully present aliens would likely be subject to the same analysis given to
measures granting driver’s licenses to such persons.138
Municipal ID Cards
Some cities have also adopted measures that provide unlawfully present aliens with municipal ID
cards for use in their dealings with the city.139 For example, the San Francisco Board of
Supervisors passed an ordinance on November 20, 2007, authorizing the County Clerk’s Office to
issue “SF City ID Cards” to all San Francisco residents, regardless of their immigration status.140
All city agencies and “other entities receiving [c]ity funds” are required to accept the cards as
proof of identity and residence, unless state or federal law requires otherwise.141 This includes the
Police Department, Department of Public Health, Public Utilities Commission, and Child Support
Services, among others.142 The card can also be used as a library card at the city’s public libraries;
a form of identification to open a checking account at participating banks; or to open a “Family
Account” with the Recreation and Parks Department.143 Some commentators have expressed
concerns about such practices that are akin to those raised about state measures granting driver’s
licenses to unlawfully present aliens.144 However, for the reasons previously discussed, this

(...continued)
of Safety, found that that state’s practice of issuing non-citizens paper 45-day temporary licenses, and citizens a
laminated photo-ID permit good for 6 months, violated equal protection, it applied rational basis review in scrutinizing
this practice. 2006 U.S. Dist. LEXIS 18170, at **40-*43.
136 LULAC, 2004 U.S. Dist. LEXIS 26507, at *19. As to the state’s homeland security concerns, the court had
previously accepted the state’s argument that the “drivers’ certificate legislation represents a balancing of interests—on
the one hand, allowing holders of the drivers’ certificate to validly operate motor vehicles in the state, while on the
other hand, indicating to third parties that the State of Tennessee does not vouch for the identity of the person holding
the drivers’ certificate.” Id. at *16-*17.
137 Cf. A Yes or No Answer, supra note 4, at 442-57 (discussing opposition to the Utah and Tennessee measures).
138 See supra notes 108-125.
139 See, e.g., Catherine Saillant, L.A. Council Approves ID Cards for City Residents, LOS ANGELES TIMES, Nov. 7, 2012,
available at http://articles.latimes.com/2012/nov/07/local/la-me-city-id-card-20121108; About DC One Card, available
at http://dconecard.dc.gov/dconecard/cwp/view,a,1241,q,461156,dconecardNav,%7C.asp (last accessed: Mar. 23,
2014); City of New Haven, Community Servs. Admin., New Haven’s Elm City Resident Card: My City, My Card,
available at http://www.cityofnewhaven.com/csa/newhavenresidents/ (last accessed: Mar. 23, 2014).
140 See City & County of San Francisco, Office of the County Clerk, SF City ID Card, available at
http://www.sfgov2.org/index.aspx?page=110 (last accessed: Mar. 23, 2014).
141 City & County of San Francisco, Office of the County Clerk, SF City ID Card: Using Your Card, available at
http://www.sfgov2.org/index.aspx?page=114 (last accessed: Mar. 23, 2014).
142 City & County of San Francisco, Department and Agencies, available at http://www6.sfgov.org/index.aspx?page=
40 (last accessed: Mar. 23, 2014).
143 SF City ID Card, supra note 140.
144 See, e.g., Michael D. Bonanno, Municipal Identity (Card) Crisis: U.S. Citizenship and the San Francisco Municipal
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practice may be unlikely to be found to be barred by federal law (see “Granting Driver’s Licenses
and Other State-Issued ID”).
It is also important to note that municipal ID card measures would arguably not override existing
federal restrictions upon the receipt of federal, state, or local public benefits by unlawfully present
aliens.145 Federal law bars unlawfully present aliens from receiving federal public benefits—a
term that encompasses any benefit provided using federal funds, even if the program is
administered by a state or local government.146 This general prohibition upon the provision of
federal public benefits to unlawfully present aliens would continue to apply, even if a local
agency were otherwise “required” to accept municipal ID cards, because federal law preempts
inconsistent provisions of state and local law.147 Similarly, where state and local public benefits
are concerned, the state would arguably need to have enacted legislation that “affirmatively
provides” for unlawfully present aliens’ eligibility in order for the local agency to provide such
benefits to such aliens.
Recognition of Foreign Consular IDs
A foreign consulate’s issuance of consular IDs to its country’s nationals has been a long-standing
practice. However, the number of IDs issued to foreign nationals residing in the United States,
and the recognition of these IDs as a legitimate form of identification by government and private
institutions, has grown significantly in recent decades.148 Some states and localities have adopted
measures that recognize consular IDs, including as a form of identification to obtain a driver’s
license, while others have limited or prohibited their acceptance by government and private
entities.149

(...continued)
I.D. Program, 7 GEO. J. & PUB. POL’Y 545, 561-69 (noting concerns expressed about such card programs). One specific
concern is that these measures “upset the traditional notion of U.S. citizenship” by recognizing the local citizenship of
persons who are not U.S. citizens. Id. at 549, 555, 561.
145 Commentators have noted that such measures would provide unlawfully present aliens with access to “publicly-
funded municipal programs.” See id. at 547, 562. However, not all public programs would constitute public benefits
under PRWORA. See supra notes 116 to 125.
146 See, e.g., Pimentel v. Dreyfus, 670 F.3d 1096, 1099 n.4 (9th Cir. 2012) (Supplemental Nutrition Assistance Program
(SNAP) a federal public benefit, even though it is provided through the states, because it relies on federal funds).
147 PRWORA expressly provides that its restrictions apply “[n]otwithstanding any other provision of law,” 8 U.S.C.
§1621(a), and its provisions have generally been construed as “invalidating” other federal, state, or local measures
regarding noncitizens’ eligibility for public benefits to the degree that these measures conflict with PRWORA. See,
e.g., Kaider, 975 N.E.2d at 673; Pimentel, 670 F.3d at 1101; Doe v. Wilson, 67 Cal. Rptr. 2d 187, 190 (Cal. App.
1997); Dep’t of Health v. Rodriguez, 5 So. 3d 22 (Fla. App. 2009).
148 See generally archived CRS Report RL32094, Consular Identification Cards: Domestic and Foreign Policy
Implications, the Mexican Case, and Related Legislation, by Andorra Bruno and K. Larry Storrs; Government
Accountability Office, GAO-04-881, Consular Identification Cards Accepted within United States, but Consistent
Federal Guidance Needed (2004).
149 Compare, e.g., CAL. VEH. CODE §12801.9 (accepting valid consular ID for applicant’s applying for driver’s license);
5 Ill. Comp. Stat. 230/10 (generally permitting acceptance of consular IDs for government purposes) with Ariz. Rev.
Stat. §41-5001 (barring acceptance of consular IDs as form of identification by state and political subdivisions); GA.
CODE ANN. §50-36-2 (generally barring state and local government acceptance of consular ID except as required by
federal law).
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Measures restricting or permitting the acceptance of consular IDs by government entities
generally seem unlikely to give rise to preemption concerns.150 Restrictions on the acceptance of
consular IDs by government authorities, particularly in relation to applications for a state-issued
driver’s license or ID, appear to be consistent with federal law, and the adoption of such
restrictions seems to be encouraged by the REAL ID Act. The act effectively prohibits states,
when issuing driver’s licenses or state ID cards, from accepting for purposes of personal
identification foreign documents other than valid passports, if such driver’s licenses or ID cards
are to be accepted for federal purposes.151 Accordingly, a state ID would not comport with REAL
ID Act standards if an applicant for the state ID document were allowed to submit a consular ID
as verification of his or her identity.
On the other hand, it also does not appear that the REAL ID Act bars states from recognizing
consular IDs, including for purposes of verifying the identity of an applicant for a state-issued ID.
As previously discussed, the REAL ID Act appears to still permit states to issue driver’s licenses
and other IDs that do not comply with the act’s issuance standards,152 though non-compliant IDs
may not be accepted by federal agencies for official purposes. Accordingly, a state that opts to
accept consular IDs as a form of identification, including as part of an application for a state-
issued form of ID, would not appear to be preempted from doing so.
While it might generally be permissible for state or local governments to deny recognition of
consular IDs without coming into conflict with federal law, a limited exception might exist in the
context of law enforcement. The United States is a party to the Vienna Convention on Consular
Relations (VCCR), a multilateral agreement codifying consular practices originally governed by
customary practice and bilateral agreements.153 Pursuant to Article 36 of the VCCR, when a
national of a signatory State (i.e., country) is arrested or otherwise detained in another signatory
State, appropriate authorities within the receiving State must inform him “without delay” of his
right to have his consulate notified.154 Arguably, possession of a consular ID by an arrested person
may assist law enforcement in verifying that the person is a foreign national and assist police in
identifying the appropriate foreign consulate to contact on the foreign national’s behalf.155 A state
or local restriction on police acceptance of such documents could be subject to a preemption
challenge on the grounds that the policy conflicts with or frustrates the purposes of the VCCR’s
consular notification requirements.

150 There has been little judicial activity concerning challenges to either state acceptance or non-recognition of consular
IDs. In a legal challenge brought against an Indiana measure that barred acceptance of consular IDs by both
government and private actors, the parties stipulated that “limitations or restrictions on the use of these documents in
connection with official state matters is a permissible exercise of state governmental authority.” Buquer v. City of
Indianapolis, 797 F. Supp. 2d 905, 913 (S.D. Ind. 2011).
151 P.L. 109-13, Div. B, §202(c)(3)(B).
152 See supra at “Preemption by the REAL ID Act.”
153 Vienna Convention on Consular Relations, done April 24, 1963, 21 U.S.T. 77.
154 For further discussion of U.S. interpretation of the VCCR’s consular notification requirements, see archived CRS
Report RL34450, Can the President Compel Domestic Enforcement of an International Tribunal’s Judgment?
Overview of Supreme Court Decision in Medellin v. Texas, by Michael John Garcia, and archived CRS Report
RL32390, Vienna Convention on Consular Relations: Overview of U.S. Implementation and International Court of
Justice (ICJ) Interpretation of Consular Notification Requirements, by Michael John Garcia.
155 See State Department, Consular Notification and Access Manual (2014), at 13 (providing guidance to federal, state,
and local law enforcement regarding consular notification under the VCCR and other agreements, and noting that
possession of a consular ID card may be a means for law enforcement to conclude that an arrested individual is a
foreign national).
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State or local restrictions on private entities’ acceptance of consular IDs have been subject to legal
challenge, and the single reviewing federal court that considered such a challenge found that the
restriction raised preemption and other concerns. In 2011, a federal district court in Buquer v. City
of Indianapolis preliminarily enjoined enforcement of an Indiana statute that made the offering or
acceptance of a consular ID as a form of identification (other than for law enforcement purposes)
a civil infraction.156 While the parties stipulated that a state could decline to recognize consular
IDs as a legitimate form of identification,157 the district court agreed with plaintiffs’ argument that
the Indiana statute’s “sweeping prohibition” conflicted with the rights afforded to foreign
consulates under the VCCR, and also had the potential to directly interfere with the Executive’s
conduct of foreign affairs.158 While the district court noted that the state law did not bar foreign
consulates from issuing consular IDs (which the court opined would have been a direct violation
of the VCCR159), it characterized the Indiana statute as making the issuance of consular IDs
“meaningless as [the restriction] prohibits almost every use for which the documents are
ordinarily issued, including for identification purposes in private commercial transactions that are
conducted between private parties.”160 The court also deemed it important that the State
Department had cautioned against action from being taken against consular IDs that might lead
other countries to establish similar limitations on U.S. citizens’ usage of consular IDs within their
territories.161 Finally, the court noted U.S. Treasury Department regulations which permit (but do
not require) financial institutions to accept consular IDs as a legitimate form of identification.162
While the court did not believe the Indiana measure directly conflicted with this regulation, it
stated that the regulation provided “further evidence of the federal government’s overarching and
legitimate interest in proceeding with caution with regard to regulating the use” of consular
IDs.163
The Buquer court also found that the plaintiffs were likely to succeed on their due process and
equal protection challenges to the statute, as Indiana had failed to establish a rational relation
between the statute’s prohibition and a legitimate governmental interest. While Indiana had
argued that the statute helped to ensure the prevention of fraud and the reliability of identification
of individuals within the state, the court concluded that, after “examination of the admittedly
limited evidence before it,” consular IDs were at least as reliable forms of documentation as other
types of ID that were not singled out for sanction by Indiana.164 Litigation in the case remains
ongoing.


156 Buquer v. City of Indianapolis, 797 F. Supp. 2d 905 (S.D. Ind., 2011) (concerning consular identification provision
found at BURNS IND. CODE ANN. §34-28-8.2-2).
157 Id. at 913.
158 Id. at 922-923.
159 Id. at 922. The VCCR does not specifically mention consular IDs. However, Article 5 of the treaty lists legitimate
consular functions as including, inter alia, (1) issuing passports and travel documents to nationals of the sending State,
and visas or appropriate documents to persons wishing to travel to the sending State, (2) protecting in the receiving
State the interests of the sending State within the limits permitted by international law, and (3) helping and assisting
nationals of the sending State.
160 Id. at 922.
161 Id. at 923.
162 Id. (citing 31 C.F.R. §1020.220, which, though not mentioning consular IDs, discusses identification verification
through government-issued documentation).
163 Buquer, 797 F. Supp. 2d at 923.
164 Id. at 924.
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Author Contact Information

Kate M. Manuel
Michael John Garcia
Legislative Attorney
Legislative Attorney
kmanuel@crs.loc.gov, 7-4477
mgarcia@crs.loc.gov, 7-3873




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