States of Resistance: The REAL ID ACT and Constitutional Limits Upon Federal Deputization of State Agencies In The Regulation of Non-Citizens

Abstract

Since the passage of the REAL ID Act in 2005, federal and state governments have clashed over implementation of the law's sweeping and prohibitively expensive changes to states' motorist licensing schemes. The REAL ID Act would affect all 56 U.S. jurisdictions and more than 240 million driver's license applicants or holders.The Article discusses the design flaws of the REAL ID Act within the context of the nation's traditional "immigration federalism" framework in regulating non-citizens, and evaluates the viability of legal challenges on the grounds of equal protection, due process, federalism principles, and international law. Part I discusses states’ authority over non-citizens and the history of “immigration federalism” jurisprudence. Part II explores key provisions of the REAL ID Act, the Western Hemisphere Travel Initiative, and similar attempts by the federal government to deputize states to engage in citizenship-policing and immigration enforcement. It describes the acute social and economic segregation that the denial of driver’s licenses to non-citizens engenders, and examines a number of theories that attempt to capture the impact of the current immigration federalism framework or prescribe alternate approaches. Part III discusses previous legal challenges under the Equal Protection Clause involving similar measures and the viability of potential challenges under the Tenth Amendment and international human rights laws. The Tenth Amendment discussion in particular elaborates on the “dual sovereignty” framework for federalism in the immigration context that the Supreme Court articulated in Printz v. United States, and questions the fate of future Congressional legislation that may be described as irrational, xenophobic, and untethered to political accountability.