On December 27, 2007, the Honorable Representative from Michigan's 71st District (centered on the small town of Charlotte, MI, southwest of Lansing), Rick Jones, received a reply from Michigan's Attorney General, Mike Cox, about a letter asking for an update to a previous opinion regarding issuing driver's licenses to non-residents (of Michigan). I wasn't able to find a copy of the letter that Rep. Jones sent A.G. Cox, however, the gist of it was summarized in the opinion's opening sentence:
You ask whether, in light of OAG, 1995-1996, No 6883, p 120 (December 14, 1995) (OAG No 6883), the Michigan Secretary of State is required to issue a driver's license to an illegal alien1 living in Michigan.The rationale for a new opinion was likely based on language that was changed by the Social Security Department regarding the use (and misuse) of SSNs:
At one time, the federal government assigned social security numbers for certain valid nonwork purposes, including for the purpose of obtaining a state-issued driver's license that required an applicant to provide a social security number as a condition of receiving the license. In 2003, this policy ended. In explaining the rationale behind the policy change, the Social Security Administration cited the problems of fraud and misuse arising from the issuance of social security numbers (SSNs) so that illegal aliens could obtain driver's licenses: "Our experience has revealed that fraud and misuse regarding SSNs for nonwork purposes has been almost exclusively in relation to SSNs issued for driver licensing." 68 Federal Register 55304 (codified at 20 CFR 422.104 effective October 27, 2003).The A.G.'s opinion hinged on definitions of "resident," both within state law and federal law. Although I haven't tracked down all the references to other statutes, the opinion does seem to have good internal logic. (I personally disagree with his starting-point, but that's another issue.)
Effectively, the new opinion was summed up with:
It is my opinion, therefore, that only a resident of Michigan may be issued a Michigan driver's license. A person who is not a lawful resident of the United States cannot be a resident of this State for purposes of obtaining a driver's license under sections 51a and 303(1)(h) of the Michigan Vehicle Code, MCL 257.51a and MCL 257.303(1)(h).Here, the definition of "resident" was effectively narrowed down to people legally in the United States who had intent to set up permanent residence in the state. (This is where I don't agree with his definition, but again, that's another issue.) This effectively meant that illegal aliens were non-resident, as were all people in the state on temporary work visas, or student visas, and as non-residents, they were disqualified from being allowed to obtain driver's licenses.
On January 21st, Michigan's Secretary of State office issued this news statement (block-quoted in full, in case it is removed from the SOS website):
Secretary Land promotes border, document securityNeedless to say, this caused a bit of a tizzy with some people. Land said her hands were tied by the A.G.'s opinion. Cox said he didn't mean that Land should take away temporary (legal) immigrant worker's ability to apply for driver's licenses. However, it wasn't until universities and companies started to realize what sort of impact this would have on their recruiting abilities that Land's office gave out the following press release (again block-quoted in full):
First-time applicants for a Michigan driver's license or identification card must prove that they have established a permanent legal presence in the United States, under a requirement taking effect Tuesday, Jan. 22, Secretary of State Terri Lynn Land announced today.
Land's push to enhance driver's license security can now move forward due to a recent attorney general's opinion. The opinion says that under current law the state cannot issue a driver's license to anyone who is not in the country legally and permanently. Today's announcement only deals with original applications. Updated procedures for renewals will be released soon.
"This is one more tool in our initiative to bolster Michigan's border and document security," Land said. "It also puts Michigan's procedure in line with those of most other states. The department will maintain its highest standards of customer service by sharing information with the public and working with applicants so that they understand the requirements. We all share the goal of a safer Michigan and America."
As of Tuesday, applicants for an original driver's license or state-issued ID card must meet four standards in addition to Michigan's driving and physical health requirements by providing documentation of:
* A valid Social Security number or ineligibility for one. Applicants will have to bring their Social Security card or other acceptable document to a Secretary of State office, or a letter of ineligibility from the U.S. Social Security Administration.
* Legal and permanent presence in the United States.
* Their identity (legal name and date of birth).
* Michigan residency.
A list of acceptable documents is at www.Michigan.gov/sos. The Web site includes information on obtaining a Social Security card from the federal government.
Land encouraged customers to make sure they have the documents necessary to complete their applications before going to a branch office.
She added that the new policy actually complements the department's commitment to speeding up branch office service. Because fewer foreign identity documents will be accepted from applicants, employees at the counter won't be confronted with as many time-consuming transactions and can serve other customers. Documents that need additional verification will be reviewed in Lansing rather than in branch offices. In those instances a customer may be asked to visit the branch again.
Land also pointed out that the number of original applications processed in branch offices is relatively small, accounting for less than 4 percent of all branch transactions.
A state lawmaker recently asked Michigan's attorney general to revisit a 1995 opinion that has guided Michigan's policy to this point. The 1995 opinion said the department could not refuse to issue a license simply because the applicant was not legally in the country. The most recent opinion takes precedence over the earlier opinion.
Land already has been working to enhance driver's license security. In December 2007 she proposed the creation of an upgraded "standard" driver's license and an optional "enhanced" version that can be used in place of a passport at the Canadian border. The plan is being considered by the Legislature.
Her proposal would change the law to allow residents who are in the U.S. legally but temporarily to apply for an upgraded standard license.
"Michigan has many outstanding residents who contribute greatly to our economy and society even though they're here on a temporary basis," Land said. "Businesses rely on these talented individuals as well. Under the attorney general's opinion, those who are in the country legally but on temporary student or work visas are ineligible for a Michigan license, though most still can drive using the license of their home country. We need to reconsider that aspect of the law to avoid unintended consequences for individuals or job providers. I encourage citizens to voice their support for our proposal and contact their legislators."
Secretary of State Terri Lynn Land today urged swift approval of legislation that eases the identification burden on residents traveling to Canada, and also allows those who are in the U.S. legally but temporarily to apply for a driver's license or ID card.Yesterday, universities and the ACLU made statements that it will be very difficult to recruit highly skilled researchers, faculty, and students to come to Michigan. Today, though, a bill rectifying this problem (HB4505) has passed (nay, pushed) through the Legislature to the Governor to sign into law. (I wonder if the ACLU is still going to sue over Land's decision.)
"Protecting our borders is critical in this post-911 world," Land told the Senate Transportation Committee. "Ensuring the integrity of state-issued documents is an important step toward that goal. However, we can and must implement these safeguards in a reasonable manner. This legislation provides travelers with greater convenience, protects our economy and recognizes the needs of residents who are here legally but are not permanent residents. Most important, it does so without sacrificing the safety of our great state and nation. I encourage the Legislature to pass these measures without delay."
The pending legislation is based on Land's proposal to enhance driver's license and ID card security. Land said that prompt action is needed due to recent developments. Michigan law now bars legal residents who are in the country on student and work visas from obtaining a driver's license or ID card. Land wants the law changed to avoid unintended consequences for job providers and legal but temporary residents.
In addition, key U.S. Department of Homeland Security rules take effect today. Those who travel to Canada and Mexico by land now must show a passport or a photo ID such as a driver's license, as well as proof of citizenship such as a U.S. birth certificate, at border crossings. Homeland Security no longer accepts oral declarations of citizenship at the border and restricts the types of ID documents that can be used. Land wants to preserve Michigan's
$70 billion-a-year trade relationship with Canada and spare travelers the inconvenience of having to provide multiple documents at the border.
Land's initiative, unveiled in December 2007, will alleviate the burdens on travelers and temporary residents by:
- Creating an upgraded "standard" driver's license and ID card. The new documents will have added security features to prevent fraud. They will be available to Michigan residents and those who are in the U.S. legally but temporarily. The upgraded license and ID also can be used by residents for domestic air travel when the federal REAL ID Act takes effect. Without these upgraded documents, all residents will need a passport to board even domestic flights.
- Creating an optional "enhanced" driver's license and ID card that is REAL ID-compliant and can be used for travel to and from Canada and other Western Hemisphere countries under the Western Hemisphere Travel Initiative. Only Michigan residents who also are U.S. citizens will be eligible. Land first introduced the concept of an enhanced license in 2005 as a way to prevent the new federal requirements from negatively impacting commerce and inconveniencing residents who visit Canada.
Bills that will upgrade Michigan's "standard" license are House Bills 5518 and 5519 and Senate Bills 962 and 963. Bills creating the optional "enhanced" license are HB 5535 - 5537 and SB 964 - 966.
There are a few interesting points about this house bill. First, it was introduced by Representative Chris Ward (R-Brighton) on March 21, 2007, and referred to Oversight and Investigations. Then no stated action was taken on it until February 6, 2008. Then, from February 6, it moved from O&I to the Transportation committee. On February 7, the committee had a substitution (H-3) reported, read a second time, had the substitution adopted and amended, read a third time, adopted substitutions H-5 and H-6, and passed (overwhelmingly), 103-2, changed the name of the bill, and sent it to the senate. (I'm sure I'm leaving out some critical procedural steps, but my point is that when they had to act, the house of Reps, acted promptly.)
Similarly, in the Senate, the bill was received and passed to the Transportation committee. On February 14, it passed out of committee, placed on general order, normal rules were suspended, it was placed on immediate passage, and voted on (less overwhelmingly) 48-38, given a full title, and sent back to the House. Then, on the same day, the House suspended normal rules and voted on the returned senate version (not as overwhelmingly as the first time) 98-6, agreed to the full title, and passed it to the governor.
The part of the bill that I like is this bit (Section 307, 1, b):
If the applicant is not a citizen of the United States, the applicant shall provide documents demonstrating his or her legal presence in the United States. A person legally present in the United States includes, but is not limited to, a person authorized by the United States government for employment in the United States, a person with nonimmigrant status authorized under federal law, and a person who is the beneficiary of an approved immigrant visa petition or an approved labor certification. The secretary of state shall adopt rules under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, as are necessary for the administration of this subdivision. A determination by the secretary of state that an applicant is not legally present in the United States may be appealed under section 631 of the revised judicature act of 1961, 1961 PA 236, MCL 600.631.In other words, students and visiting scholars (the bit I italicized above) are allowed to get drivers licenses again. I'm still a little worried about the following exception of a type of person ineligible for a driver's license:
A nonresident, including, but not limited to, a foreign exchange student.This language is a hold-over from the previous versions of the law. I don't know why it was entered into the law in this form, and the law doesn't provide a definition of "foreign exchange student." (Maybe it refers to high-school foreign exchange students?) I am assuming, though, that international students at university don't fall into this category, since there was no "exchange" of students.
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