Last week, Mayor Vincent Gray of the District of Columbia, introduced a new bill to allow undocumented residents of the District to obtain driver's licenses and ID cards. This legislation might represent a great step forward for equality and safety in D.C., except that Mayor Gray has decided to create a separate class of driver's licenses to be given only to undocumented residents.
As an undocumented D.C. resident, I sat down in Mayor Gray's Executive Office, along with some friends, to ask the Mayor to change his mind and issue the same license for all residents, rather than creating a two-tier system that would label, stigmatize and unfairly mark undocumented residents of the District, risking more violence and discrimination against us.
Because undocumented residents cannot currently obtain driver's licenses and ID cards in the District where we live, work and attend school, we face a myriad of hardships and injury. We are routinely targeted for robbery, since we carry large sums of cash that we cannot keep in the bank. We are constantly denied housing since we cannot produce proper identification and documents. We risk trouble with law enforcement every time we drive our loved ones to the hospital during an emergency, or our U.S. citizen children to school. These problems are unlikely to be ameliorated by a two-tier licensing system, because it exposes undocumented residents.
The Mayor's Office stresses that the reason for the discriminatory two-tier licensing provision is the federal REAL ID Act of 2005, which sets forth certain standardized requirements for state driver's licenses and ID cards to be accepted by the federal government for "official purposes." These requirements include proof of legal status before a state or the District can issue driver's licenses and ID cards to residents.
At first glance, this may seem to be a gigantic problem, but it is a rather tiny hurdle. First, the Mayor's Office is interpreting the REAL ID regulations incorrectly. States do not need to comply with the REAL ID as it is not a federal mandate, but has an opt-out provision. States that issue licenses that are non-compliant only risk that the licenses would not be accepted for federal purposes.
Second, per the REAL ID regulations, D.C. is already not in compliance with the federal law. The narrow REAL ID regulations provide for driver's licenses and ID cards for persons who have lawful status in the United States. However, the regulations render several categories of persons who are lawfully present but have no lawful status in the U.S. ineligible for licenses, such as persons with withholding of removal, persons with an order of supervision, persons with a pending cancellation of removal application, and so on. D.C. currently provides licenses to these persons, in violation of the REAL ID regulations, without marking such licenses with a different label, such as "not valid for federal purposes."
Third, regardless of the myriad of exclusions imposed by the REAL ID, the law is not in effect and is unlikely to go into effect anytime soon. In fact, even the constitutionality of the REAL ID Act has not been litigated yet, which means that not only can the actual law wind up in court for many years, but that it may be eventually stuck down as unconstitutional.
And finally, D.C. has a long history of non-compliance with unjust federal laws and mandates. The D.C. Council was one of the first legislative bodies to renounce REAL ID and pass a resolution urging the repeal of the REAL ID. And just last year, D.C. Council passed a law to restrict the enforcement of the federal Secure Communities program in the District.
There are simple solutions that resolve any purported conflict between the proposed two-tier licensing system and the REAL ID Act. The D.C. Council can propose that until it is required to be in compliance with the REAL ID Act, everyone would be given the standard ID. Alternatively, every D.C. resident should get IDs that state "not valid for federal purposes" as the standard practice while those persons who need or require an ID valid for federal purposes can already obtain an enhanced ID under D.C. Code § 50-1401.03.
Since D.C. does not have home-rule, some critics in the Mayor's Office and elsewhere have lamented that there is no point to passing such amended legislation as Congress would simply overturn it. This is, once again, hyperbolic and politically ignorant speculation. In fact, Congress won't touch the legislation with a 10-foot pole for several reasons.
First, Congress has left untouched more controversial measures coming out of the D.C. Council that are not in line with federal law, such as restricting Secure Communities and providing for marriage equality. Second, Rep. Eleanor Norton (DC) and several Congressional staffers do not believe that Congress would act to overturn a D.C. transportation provision at time when a bipartisan group of Congresspersons are working on sweeping reforms to the immigration system. Third, Congress does not have to act in order for the licensing provision to become law. Congress would simply have to fail to overturn the bill within 30 legislative days, which is very likely, given their well-known aptitude at failing to pass legislation.
Separate is not now, and never has been, equal. It is time to treat all D.C. residents equally, and disband with the two-tier proposal that unfairly targets, stigmatizes and enables profiling of hard-working, undocumented D.C. residents. If we are indeed supposed to be one city, then we all deserve to have the same license.