A Major State Issue That Cannot be Ignored.
There is a battle raging between the States and the federal government concerning immigration. The NYS Legislature is squarely in the middle of this battle and has passed legislation that is clearly not consistent with the intent of the US Government’s immigration laws. It is clear that the States have the constitutional right to determine who can be a resident of their state. This is a power that was never given up by the States and never “prohibited to it” by the US Constitution(1). The federal government was only given the power to provide uniform rules of Naturalization(2), not the power to determine who can and cannot be a resident of the States(3).
The separation of powers is what is at the heart of all the controversy. Is the US Government overstepping its powers? It labeled the influx of immigrants as an “invasion” and is acting accordingly, it even created its own militia, the Immigration and Naturalization Services (INS)(4).
The existence of a vast number of problems that surround immigration is a cause for the call to adopt the simplest solution, which is – export all non-naturalized individuals and all individuals who have not formally applied for and received permission from the US Government to enter the United States.
Pursuing this simple solution, some States have requested the federal government’s assistance. The federal government does not have the right to ignore the rights of States that have not requested their assistance.
The constitution limits the powers of both the federal government and the states. But, it also imposes responsibilities on States to treat everyone in their jurisdiction equally, protecting the rights of everyone, not just citizens(5).
Citizen versus Resident
The constitution has identified the conditions that make an individual a US citizen. Those same conditions also make the individual a citizen of the State in which they reside(6). But by the very existence of this definition, individuals will be identified as residents of the States that are not citizens.
Some states are OK with requiring every resident of their state to be a citizen of the United States. Others have not given up the State’s right to determine who can be a resident of their State and many residents of those States are not US citizens.
New York State is one of those States that preserved its right to determine for itself who may become a resident, welcoming every peace-loving individual. If the individual rents an apartment, owns a home or pays monthly residential utility bills, that person is deemed to be a resident of New York State provided the individual spends more than half (183 days or more) of the year in New York State.
NYS Eliminates the Requirement to be a US Citizen.
The NYS Executive Budget for 2020-21 now requires that an individual seeking a license to become a Notary Public, a Real Estate Agent, Real Estate Salesman, or Real Estate Broker(7) only be a resident of New York State(8). This year, the requirement for a person to be “… a citizen of the United States or an alien lawfully admitted for permanent residence in the United States” has been deleted in six places in the budget. The budget specifies only the need to be a resident of the State, not a State citizen or a citizen of the United States, and there are several distinctions and references made to privileges and rights of a resident, non-resident, and state citizenship.
The Green-light Bill
In 2019, NYS legislators passed what is referred to as the ‘Green Light’ law. This law was intended to empower residents of the state who are not official “US/State citizens” by allowing all residents to obtain a driver’s license so they can legally drive on NYS Roads. Governor Cuomo is quoted as saying, “I want to make sure people who are on the roads are licensed. I don’t want unlicensed people on our roads …”. He continued saying, “You can worry about … federal immigration laws. Let me keep people safe on our roads…”(10)
There are some major benefits created by the Green-light law. To the extent these individuals do not have a driver’s license they are ‘undocumented’ and cannot legally drive on NYS Roads. This bill: 1) gives all residents the right to obtain a driver’s license, making them more independent and able to attend to their own needs. 2) these residents are given the chance to take driver training and become safer drivers. 3) In almost every case, these individuals have one or more of over 600+ official forms of ID that are issued by nearly 200 countries around the world. These residents, by stepping forward to get a driver’s license will be identifying themselves. By presenting these documents to an NYS enforcement agency, the Department of Motor Vehicles (DMV), these individuals will be proving their identity, indicating where they came from, provide a valid and verifiable physical address of their residence (which will be verified by the mailing of the driver’s license to the address) and will have a photo taken that will be placed on their driver’s license which thereafter can be used to identify who they are. To ease the fears of those that believe these individuals will commit a crime and then just skip town and apply for another driver’s license using fraudulent documents and a different address, consider the facial recognition technology that the DMV could use that is now available and often used in the enforcement fields.
The Green Light bill impacts many legal residents of New York State. Nearly 725,000 residents in NYS are labeled ‘undocumented’ and thus ‘illegal’ by the INS. Nearly 535,000 live in NYC. These are legal NYS residents by the state’s definition and the state is not seeking to have them removed from the State. Despite the fact that they are considered legal residents, they are under constant fear of extradition by the INS.
Friction between NYS and the Federal Government Increases
Because of what is considered overzealous actions by United States Government’s INS agents and the Border Patrol and Customs (BPC) agents, some states, cities, and counties have declared themselves to be a Sanctuary state, city, or county. “Palpable fear has just become part of their lives”(11)The number of such areas designated as sanctuary areas has nearly doubled in the past six years. To many individuals, the problems created by the INS have become so unacceptable that many churches have agreed to embrace the ancient custom of “Sanctuary” to give individuals a respite from the INS’s tyranny and to give these people time to find a satisfactory solution to their plight, or to just prepare for their unwelcome fate(12). While the INS has respected the church sanctuary rights, agents have just sat around and apprehended individuals as soon as they step out the church’s door.
In NYC, it has been reported that when an INS agent is observed arriving at a residence to apprehend and deport one of these “illegal” individuals, large crowds will gather spontaneously, surround the INS agents, and physically block the INS agents ability to remove the resident from the community..
The US Constitution charges New York State, and all the States, to protect all individuals, including those being sought by the INS, and to ensure they receive due process(13). Protecting residents from an unjust expulsion from the State is a duty of the State. In a move to do just that, the governor has ordered the DMV to not share motor vehicle registration records with the INS or BPC agents in an effort to prevent these government agencies from trouncing on the rights of NYS residents. In a recent and more controversial move, an amendment to the Green Light law (passed by the NYS Legislature) has been signed by Governor Andrew Cuomo calling for any state official who shares the resident’s DMV data with any federal immigration enforcement agency to be charged with a class-E felony(14).
Clearly, while it is a national problem, immigration is an NYS problem too. It will be the subject of much legislation in the future.
There is a simple, honorable immigration policy that could be easily established. The proposal is not a panacea that will eliminate all concerns, but it would eliminate much of the grief and chaos experienced by immigrants and it does address many of the concerns citizens have regarding immigrants. As a foundation, the proposal would build a policy that is fitting for a country claiming to be founded on freedom and liberty.
For a complete list of references mentioned in this document please email Mark Glogowski