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As a county clerk in N.Y., Kearns is uniquely poised to fight Green Light Law

Last month, Erie County Clerk Michael "Mickey" Kearns filed a federal lawsuit challenging the state's new law granting driver's licenses to immigrants living in New York State illegally, and he promised to fight all the way to the Supreme Court.

He's not the first local official in the nation to object to such a driver's license law.

But because of how New York State relies heavily on independently elected county clerks in issuing driver's licenses, Kearns might have a real shot at reaching the nation's highest court, although it's no slam dunk.

Kearns became the first state official in the nation to mount a legal fight against issuing driver's licenses to those who are here illegally, although 12 other states, plus the District of Columbia and Puerto Rico, have similar laws on the books. The laws have been controversial in the other states, as well, but most of those state governments directly handle the issuance of driver's licenses and aren't going to sue themselves.

But the way New York State issues driver's licenses gives Kearns standing that local officials in other states do not have.

Three weeks after Gov. Andrew Cuomo signed the Green Light Law on June 17, Kearns asked a federal judge to rule the law unconstitutional. Rensselaer County Clerk Frank Merola filed a similar suit on July 24.

Given the first-of-its kind challenge, the political stakes and the growing status of immigration reform as a hot-button issue, legal observers say they see a high likelihood that any initial decision made in federal court will be appealed to the Second Circuit Court of Appeals.

"Because of the timeliness of the issue and the importance of these questions on the national level, this is not just New York-centric," said former State Attorney General Dennis Vacco. "The balance of power, the distribution of power between the federal government and the states, all of that makes this ripe enough to attract the attention of the U.S. Supreme Court."

At the heart of the matter is whether federal law preempts the state law, based on what is known as the "Supremacy Clause" in Article VI of the U.S. Constitution. That clause states that federal law is "the supreme Law of the Land" regardless of any state law that may be contrary.

Kearns says that as county clerk, he is oath-bound to uphold the laws of New York State or risk being thrown out of office. But to avoid federal prosecution, he is also bound to follow federal laws and cites "comprehensive and pervasive" federal immigration laws that make it illegal for a person to hide or harbor someone who has come into the country or remains in the country "in violation of law."

It is far from certain that federal  judges will see things Kearns' way.

"Unless the federal government has spoken explicitly and said, 'you can do this, you can’t do this,' states are given a little bit of leeway," said Avidan Cover, a dean and law professor at Case Western Reserve University School of Law.

States have a long and established history of issuing driver's licenses, said Anu Joshi, senior director of immigration rights policy at the New York Immigration Coalition, a coalition of more than 200  groups that represent the state’s immigrant communities.

"We have full confidence that this lawsuit, that was clearly motivated by anti-immigrant sentiment, will be quickly dismissed by the court and that it has no legal standing," she said.

In the spotlight

Kearns wants the federal court to declare the Green Light Law unconstitutional and grant temporary and permanent injunctions against the law.

Erie County Attorney Michael Siragusa said the lawsuit is a hot topic with the County Attorney Association of the State of New York and noted strong similarities between the Erie County suit and the one filed by Rensselaer County. Kearns has garnered national press coverage and appeared on Fox News.

This week, the State of Connecticut has sent a letter to the federal judge hearing oral arguments on Kearns' preliminary injunction request. Connecticut, which adopted a similar driver's license law in 2015, will submit a court brief with supporting legal arguments for the State of New York.

"I would never have commenced this unless I thought it was unconstitutional," Kearns said. "This is an important case for New York State, but it is also an important case for the United States of America. To me, this might be the most important thing I’ve done as an elected official."

Oral arguments for Kearns' preliminary injunction are scheduled for Sept. 25 before Judge Elizabeth A. Wolford.

A conservative-leaning Democrat, Kearns has criticized the Green Light Law as granting unearned privileges to residents who committed a crime by entering the remaining in the United States without authorization. Opponents have also raised issues of potential voter fraud, unwarranted access to jobs, additional burdens on local clerks offices, and a weakening of investigative powers by local police.

Those who support the law have said it will make the streets safer by preventing hit-and-run accidents by thousands of undocumented immigrants and provide millions in license fee revenue to the state. They also cite data showing a sharp decrease in the percentage of uninsured drivers and have argued that the new laws have made police work for routine traffic stops easier, not harder.

New York State Attorney General Letitia James has said her office considers the state's Green Light Law, slated to to take effect in December, to be constitutional and "well crafted."

"If this bill is enacted and challenged in court, we will vigorously defend it," she said in a statement.

Legal arguments

Kearns' case has the benefit of having no directly similar case law that could prejudice courts against his position. It's also a case being argued at a time when state actions that are perceived as undermining federal authority have drawn heavy criticism from President Trump.

While all of that might draw higher court interest, legal experts say well-reasoned counter-arguments could sink his case.

Here are the two main legal arguments by Kearns:

  • The Green Light Law is prohibited, he says, because the federal government is the sole authority to enact and regulate immigration law. By virtue of the all-encompassing and pervasive immigration laws that fall entirely within the federal government's authority, no state can adopt a law that helps immigrants living here illegally actively circumvent federal laws as the Green Light Law does.
  • The Green Light Law directly contradicts provisions in U.S. Code Section 1324, that makes it illegal for a person to "conceal, harbor or shield" someone who enters or remains in the country illegally. Kearns argues that not only does the Green Light Law enable unauthorized immigrants to better integrate into society, but it compels county clerks to actively shield such immigrants from federal detection, such as alerting driver's license holders if immigration authorities obtain warrants requiring clerks to release a person's license information. In the case of such a direct legal conflicts, federal law must prevail.

The state's counter-arguments include the fact that states have a long tradition of determining what standards may be used for issuing driver's licenses.

Cover, the Case Western law professor, said Kearns' suit has a "squishiness" that makes it hard to say with any certainty how the courts will rule. But he pointed out that after the federal government issued tougher REAL ID driver's license standards for federal identification and domestic travel purposes and legal challenges arose, states still were at liberty to issue or deny other types of identification and driver's licenses to residents.

That includes federally non-compliant "standard" driver's licenses still issued in New York State, which unauthorized immigrants would be allowed to apply for under the Green Light Law, as opposed to REAL ID or enhanced licenses that meet a tougher standard.

"The courts seem to make an effort not to find those conflicts, especially in an area where states generally issue driver’s licenses," he said.

Joshi, with the New York Immigration Coalition, said some states have had laws on the books going back more than a decade that permit driver's licenses to be issued to unauthorized immigrants.

"We have a long history to draw from," she said.

She also said Kearns' position is no different than county clerks elsewhere who have previously refused to issue marriage licenses for same-sex couples. In 2015, the Supreme Court ruled in a 5-4 vote that all states must permit and recognize same-sex marriages.

Kearns said the legal underpinnings of those laws are not the same.

As far as whether Kearns' suit could reach the Supreme Court, legal experts say his chances would be greatly improved if his suit is appealed and decided in the Second Circuit Court, and a contradictory ruling is made on a similar case in a different circuit court.

"The decision on how far this goes is so far into the future," Vacco said. "It’s not going to be on any expedited track."

Kearns takes NY to court over drivers license law

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