Driving Deferred: How Nebraska's Refusal to Extend Driver's Licenses to Daca Applicants Is Federally Preempted

• Publication year: 2022

47 Creighton L. Rev. 315. DRIVING DEFERRED: HOW NEBRASKA'S REFUSAL TO EXTEND DRIVER'S LICENSES TO DACA APPLICANTS IS FEDERALLY PREEMPTED

DRIVING DEFERRED: HOW NEBRASKA'S REFUSAL TO EXTEND DRIVER'S LICENSES TO DACA APPLICANTS IS FEDERALLY PREEMPTED

Scott J. Packer

I. INTRODUCTION ................................... 316

II. BACKGROUND .................................... 317

A. DACA APPLICANTS AND DRIVER'S LICENSES IN NEBRASKA ....................................... 317

B. DEFERRED ACTION APPLICATIONS THROUGH JULY 2013 ............................................ 318

C. FEDERAL PREEMPTION ............................ 319

D. FEDERAL PREEMPTION AND IMMIGRATION .......... 320

1. Federal Power to Control Immigration ........ 320

2. How States May Regulate Persons who Entered the Country Illegally ................ 321

3. Statutory Actions Taken By Congress After Plyler v. Doe ................................ 323

4. Federal Preemption of State Immigration Laws After 1996 ............................. 324

a. California ................................ 324

b. Arizona .................................. 325

c. Nebraska ................................ 328

III. ARGUMENT ....................................... 330

A. LIMITING ACCESS TO BENEFITS IS AN ATTEMPTTO REGULATE IMMIGRATION BY THE STATES ....... 330

B. IT WAS THE CLEAR PURPOSE OF CONGRESS TO OUST STATE POWER IN DETERMINING WHO SHOULD BE ELIGIBLE FOR BENEFITS ............... 331

C. THE NEBRASKA POLICY STANDS AS AN OBSTACLE TO THE ACCOMPLISHMENT OF THE FULL PURPOSES AND OBJECTIVES OF CONGRESS ......... 332

D. RECOGNIZING DACA RECIPIENTS AS HAVING LAWFUL PRESENCE TO OBTAIN THEIR DRIVER'S LICENSES IS THE BEST POLICY OPTION ............ 334

E. NEBRASKA ALLEGES THAT DACA APPLICANTS CANNOT QUALIFY FOR NEBRASKA DRIVER'S LICENSES BECAUSE THEY DO NOT POSSESS LAWFUL STATUS ................................. 335

F. THE NEBRASKA POLICY IS STILL CONFLICT PREEMPTED BECAUSE DENYING DRIVER'S LICENSES TO DACA RECIPIENTS CREATES A DIRECT OBSTACLE TO ACHIEVING THE INTENDED ENDS OF THE DACA ............................. 337

IV. CONCLUSION ..................................... 338

I. INTRODUCTION

Immigration status has an enormous impact on the lives of undocumented children living in America. As of the most recent report from the Department of Homeland Security, there are over 11.5 million undocumented immigrants living within the United States.(fn1) Of these, more than twenty-four percent are under the age of twenty-five, and twelve percent are under the age of eighteen.(fn2) What gets lost in the political debate surrounding undocumented immigrants and their effect on American society as a whole is what effect the nation's treatment of illegal immigration has on the minor children of undocumented immigrants, brought to America illegally by their parents.(fn3)

This Article advocates that Nebraska should adopt the position held by the vast majority of other states: that the children of undocumented immigrants should be given the authority to drive legally on the state's roads.(fn4) This is not an endorsement of the presence of undocumented immigrants, and this Article does not argue that delivering driver's licenses to undocumented immigrants in general should confer legal immigration status.(fn5) Rather, this Article articulates the argument that, for those children who did not enter the country of their own criminal volition, and when granted limited periods of deferred action status, state regulations denying them the right to drive are federally preempted.(fn6)

Accordingly, this Article will begin by showing the promulgation of the Deferred Action for Childhood Arrivals ("DACA") plan, and the reaction to it from the State of Nebraska.(fn7) Next, it will discuss the development of the constitutional doctrine of federal preemption and its relation to illegal immigration in federal courts.(fn8) Finally, this Article will analyze the Nebraska policy in light of the United States Supreme Court's federal preemption analysis for illegal immigration issues.(fn9) This Article will also identify and rebut Nebraska's key argument against that analysis.(fn10)

II. BACKGROUND

A. DACA APPLICANTS AND DRIVER'S LICENSES IN NEBRASKA

The Deferred Action for Childhood Arrivals ("DACA") program, announced by President Barack Obama on June 15, 2012, called for exercise of prosecutorial discretion on a case-by-case basis to halt the deportations of youths who were brought to the United States illegally by their parents.(fn11) This application of deferred action has the effect of giving lawful status to DACA recipients under the REAL ID Act,(fn12) passed by Congress in 2005.(fn13) The DACA considers the applicant's level of education, criminal record, and whether the applicant served in the military before deciding whether to grant a renewable two-year legal presence to the applicant.(fn14)

Nebraska requires that every resident who owns and operates a motor vehicle possess a driver's license and proof of financial responsibility or liability insurance.(fn15) Nebraska Governor Dave Heineman issued a press release after the President's announcement, which claimed that the President's order did not make persons who illegally entered the country legal and proclaimed that Nebraska would continue to deny benefits to those who were in the country illegally.(fn16) Governor Heineman referenced L.B. 403,(fn17) which was passed by the Nebraska Unicameral in 2009.(fn18) Governor Heineman was direct in pointing out that persons who entered the country illegally were not lawfully admitted, and should not remain in the country.(fn19) Nebraska and Arizona are the only states currently denying driver's licenses to persons who entered the country illegally but were granted a legal presence in the United States under the DACA.(fn20)

The Nebraska chapter of the American Civil Liberties Union ("ACLU") brought suit against Governor Heineman for his decision on June 10, 2013 on behalf of Maria Marquez-Hernandez and several other plaintiffs.(fn21) The complaint is based on a due process argument, focused on the Governor's attempt to promulgate state law by press release.(fn22) The ACLU argued that the Governor acted without complying with Nebraska rules for notice and comment rulemaking.(fn23)

B. DEFERRED ACTION APPLICATIONS THROUGH JULY 2013

Between August 2012 and July 2013, the United States Citizenship and Immigration Services ("USCIS") received 557,412 DACA applications.(fn24) Of that number, nearly seventy-five percent were born in Mexico.(fn25) Persons aged fifteen to eighteen made up thirty-six percent of DACA applicants, those aged between nineteen and twenty-three made up forty percent of applicants, and those aged twenty-four to thirty-one made up twenty-four percent of applicants.(fn26) The youthfulness of DACA applicants is reinforced when analyzing the age in which they first entered the country; thirty-one percent were five-years old or younger when brought to the United States; sixty-nine percent were ten years old or younger.(fn27) The overall distribution of DACA applicants across the entire country matches settlement patterns of all immigrants.(fn28)

Through April 2013, 1,563 immigrants had obtained work permits in Nebraska, and of these, the Nebraska Department of Motor Vehicles denied 285 DACA participants applications for driver's licenses.(fn29) Persons without driver's licenses can face difficulty in maintain employment.(fn30) In Nebraska, persons will be in violation of the law if pulled over by the police without a driver's license.(fn31)

Nebraska is not alone in this stand against DACA applicants.(fn32) Arizona and Michigan also announced after the promulgation of the DACA that recipients would not be allowed to obtain driver's licenses, though Michigan recently reversed its policy.(fn33) North Carolina briefly ceased issuing driver's licenses to DACA recipients, but reversed its policy after the North Carolina Attorney General's office concluded that DACA recipients are eligible for driver's licenses.(fn34)

C. FEDERAL PREEMPTION

The doctrine of federal preemption of state law is the necessary corollary of the Supremacy Clause.(fn35) There are two flavors of federal preemption: express preemption and implied preemption; implied preemption may be either by field, or conflict.(fn36) Express preemption occurs when a federal statute expressly states Congress' intention to preempt state law.(fn37) If an express preemption clause exists, then it becomes the Court's duty to ascertain Congress' intent to determine the substance and scope of the preemption.(fn38) But, where an express preemption clause exists, the court's first focus is on the plain wordingof the clause, which will contain the best evidence of Congress' intent.(fn39)

Field preemption is one of two kinds of implied preemption where a state regulation is preempted because Congress has already acted to occupy the field.(fn40) This can be inferred from Congress' actions in creating a regulatory scheme so complete that there is no room left to the states to complement it.(fn41) Field preemption may also be inferred where there is a federal interest so dominant that it will preclude the states from acting to regulate the same area.(fn42) The second kind of implied preemption is conflict preemption, which can occur where compliance with both federal...