But states may thwart Obama's plans
April 6, 2014

WASHINGTON – Even as the Congressional Hispanic Caucus is joining with immigration activists to call President Obama to sign executive orders curbing enforcement against illegal immigrants, two Congressional Research Service reports find states well within their rights in clamping down against drivers licenses and access to publicly funded colleges and universities for those not in the country legally.

The Congressional Hispanic Caucus has given the White House six pages of recommendations on how the Obama administration might proceed with executive orders to curb deportations and other actions by states that would discourage illegal immigration.

Rep. Luis V. Gutiérrez, D-Ill., a leading advocate for rewriting the nation’s immigration laws, threatened Republicans in Congress if they do not move on an immigration overhaul bill before the July 4 recess, Obama will bypass Congress with executive orders.

“If we don’t see a bill moving forward and concrete steps being taken … they can watch the president … pick up his pen,” Gutierrez said. “It’s one or the other. I see it coming.”

But recently released Congressional Research Service reports offer encouragement to states taking their own action against lowering distinctions between those in the country legally and those who are not.

A March 28 report titled “Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID” on the legality of restriction drivers licenses to those in the country legally found precedent and support for states that do so.

Though such laws may be subject to legal challenge, says the report, to date the courts have not found such laws out of bounds.

“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 report says. “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.”

On the same day, the CRS offered another report on the ability of states to restrict access by illegal aliens to publicly funded colleges and universities titled “Unlawfully Present Aliens, Higher Education, In-State Tuition, and Financial Aid.”

“State measures that variously deny or grant access to public higher education, in-state tuition, or financial aid have been challenged on the grounds that they violate the Equal Protection Clause, like the Texas measure at issue in Plyler,” the report notes. “They have also been alleged to violate the Supremacy Clause of the U.S. Constitution, which establishes that federal law is ‘the supreme Law of the Land’ and may preempt any incompatible provisions of state law. Based on the case law to date, it would appear that states do not, as a general matter, violate the Equal Protection or Supremacy Clauses by excluding unlawfully present aliens from public institutions of higher education.”

GOP lawmakers in the House and Senate have been expressing grave concern about the frequency and reach of executive orders seemingly designed to bypass Congress’ exclusive constitutional power to legislate.