JURIST Guest Columnist Noeli Serna, Chicago-Kent College of Law Class of 2016, discusses the city of Chicago’s new driver’s license policy and the extent to which states can implement their own immigration laws in accordance with federal immigration laws…

The influence and power of local and state government control regarding federal immigration issues has been at the forefront of American policy in recent years. Immigration has been a central federal political issue, and many policy decisions have spurred national news coverage and discussion. In the city of Chicago, a new driver’s license policy has created such attention. On January 27, 2013, Illinois Governor Pat Quinn signed into law SB 0957 [PDF], which allows undocumented (non-visa status) individuals to obtain an Illinois Temporary Visitor Driver’s License (TDVL) in one of 25 Illinois Secretary of State facilities.

In order to obtain a TVDL, “applicants must prove they have lived in Illinois for at least a year and show they are ineligible for a Social Security card. Documents that will be accepted include a copy of a lease, utility bills and a valid passport or consular identification card.” Applicants must also pass a vision and road test. The licenses expire in three years and are renewable upon expiration. The TVDLs cannot be used as proof of identification.

The TVDLs are distinguishable from a state issued driver’s license in a multitude of ways. Instead of a red band across the top of the license, the TVDLs have a purple band. Holders of the TVDL will be unable to use the license as a form of identification necessary to board a plane, vote or purchase a gun. Proponents of the TVDL, such as Illinois Senate President John Cullerton, have emphasized that illegal immigrants are driving without a license every day in order to go to work. TVDLs will help make the roads safer because now more drivers will carry insurance and will have passed driving tests. As a result, drivers will know the rules of the road, and drivers will likely not flee after an accident due to a lack of insurance.

TVDLs offer undocumented immigrants the opportunity to receive a driver’s license and avoid a charge for driving without a license. Even so, undocumented immigrants also question whether the TVDLs make them a target for immigrant status questioning and possible deportation. Most websites that explain the application process to obtain a TVDL emphasize, in their FAQ sections, that no one will know that a TVDL holder is an undocumented individual because the TVDLs are also issued to visa holders (students, workers, etc.) who are unable to receive social security numbers. As a result, state law enforcement officials cannot assume that an individual with a TVDL is undocumented.

Undocumented individuals are nonetheless concerned about potential deportation with the introduction of the TVDLs. US Supreme Court cases, such as Hines v. Davidowitz, have held that the power to regulate immigration is exclusively a federal power. The federal government, as a result, establishes the conditions regarding who can or cannot enter the country and the conditions under which these individuals can remain in the country. States nonetheless have recently spurred political and legal discussions regarding the extent to which states can implement their own immigration laws in accordance with federal immigration laws.

The US has recently seen a trend of anti-immigrant state laws and provisions. The most famous of these state regulations is Arizona’s SB 1070 [PDF]. In June 2012, the Supreme Court upheld SB 1070’s provision section 2(B), allowing Arizona law enforcement officials to conduct immigrant status checks during law enforcement stops, commonly known as the “show me your papers” provision. However, the Supreme Court rejected three additional provisions of SB 1070 as unconstitutional. The three provisions included misdemeanor charges against immigrants not carrying registration documents, criminalizing any illegal immigrant’s act of seeking employment or authorizing state enforcement personnel to arrest an individual for a suspected offense that made him or her deportable.

The central constitutional question that surrounds state regulations and laws such as Arizona’s SB 1070 revolve around the issue of concurrent enforcement. According to Kris Kobach, a law professor at the University of Missouri-Kansas City School of Law, concurrent enforcement is “whether the state law parallels federal law without conflict.”

According to Melissa Keaney and Alvaro Huerta’s legal article [PDF], states such as Arizona argued that “requiring their officers to verify the immigration status of individuals who had been lawfully stopped was also permissible under the state’s authority to concurrently enforce federal law and fell under the meaning of “cooperation” encouraged by the INA [Immigration and Nationality Act].”

In Arizona v. United States, Supreme Court built three limitations into the provision: (1) a presumption that the individual is lawfully present if he or she presents a valid Arizona driver’s license or similar identification; (2) a prohibition on the use of “race, color, or national origin … except to the extent permitted by the United States [and] Arizona Constitution[s]”; and (3) a requirement that Section 2(B) be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.”

When undocumented immigrants, in states such as Illinois, read and learned about state provisions such as 2(B) of SB 1070, their suspicion toward new laws such as Illinois’ TVDL initiative are warranted. When news spread that a section of Arizona’s SB 1070 was upheld by the US Supreme Court, especially the section dealing with a law enforcement official’s permission to verify a driver’s legal status, the news was a resounding blow to an undocumented individual’s security behind the wheel. Furthermore, with the implementation of the TVDLs and the distinguishable purple band across the top of the license, undocumented individuals have reason to suspect that the TVDLs are only a new method for Illinois law officials to investigate an individual’s immigrant status during a pull over.

Limitation 1 of Arizona’s section 2(B) of SB 1070, though, is a persuasive tool for proponents of Illionis’ TVDL initiative. Since Illinois TVDLs do not specify whether or not the possessor is a valid visa-holder, the law enforcement official will likely presume the driver’s visa-holding status and refrain from asking further questions. Furthermore, there are public policy arguments against requiring police to question individuals about their immigration status. For example, one argument is that “reporting immigrant status to federal authorities damages the trust between immigrant communities and the police, trust which law enforcement agencies rely on for effective policing.” Moreover, anti-immigrant policies can create great financial costs to state and local budgets. States can spend millions [PDF] of dollars in reporting individuals suspected of being undocumented to federal authorities.

As a result, it is likely that trends in state-implemented anti-immigration laws such as Arizona’s SB 1070 pose little threat to proponents of Illinois’ TVDL initiative. Additionally, undocumented Illinois drivers should freely and confidently make an appointment to apply for an Illinois Temporary Visitor Driver’s License.

Noeli Serna currently works as a legal intern for the Chicago-Kent Self-Help Web Center. She serves as a section representative for the Hispanic Latino Law Student Association and social chair of the Women in Law Society. She graduated from Northwestern University with a Bachelor of Arts in English Literature.

Suggested citation: Noeli Serna, The Effect of Anti-Immigrant State Laws on Illinois Temporary Driver’s License Initiatives, JURIST – Dateline, Jan. 17, 2014, http://jurist.org/dateline/2013/12/noeli-serna-immigration-licenses.php