A friend who spent 6 months in the clink for burning his draft card was actually convicted of destroying government property, So when I passed draft age, I mailed my card back to the draft board. God only knows what they did with it. Perhaps, it sits to this day (nearly 50 years later) in some dusty file cabinet along with whatever other records they have on me (only the initial registration AFAIK).
IANAL, but one of the factors that federal courts have considered in determining if something is a tax is whether or not it is collected/handled in a usual way, like other taxes. One of the things that cut in favor of the ACA’s individual mandate being upheld on taxing power grounds was that the “penalty” (which 5 Justices kindly allowed wasn’t really a penalty, but a tax) was to be paid along with income tax. Keeping in mind that states can do things the federal government can’t, is there any federal tax that requires citizens not engaged in any particular activity (save perhaps appearing in public) or suspected of any particular wrongdoing (perhaps not even suspected of not paying the tax), to be prepared to present proof of payment of said tax on demand?
But it’s worth considering that the individual mandate was upheld. Yes, there was a political divide, but one Justice at least (the Chief Justice) was sufficiently attenuated in his political motivations as to find that taxing power was sufficient grounds to uphold the mandate, while the commerce clause was not. Make no mistake: there was a distinction between what the ACA was seeking to do (actually compel participation in commerce) and what other commerce clause cases up until that point had done (regulate activity related, albeit increasingly tangentially, to commerce).
Point is, there is precedent to use taxing power to compel (not merely regulate or prohibit) participation in an activity or else face a “totally not a penalty, even if we call it a penalty in the statute.” Sort of. Not so much when it comes to the Commerce Clause. Which isn’t to say that Congress couldn’t, perhaps, enact legislation requiring the display of a federal ID every time a purchase is made from… (insert something vaguely related to interstate commerce, like even just buying from a retailer that might get its supplies from interstate suppliers). But that’s not quite up there with “require citizens to carry documentation.”
Slight hijack - my interpretation of the ACA decision was that Roberts simultaneously sent the signal that there were limits to what a conservative SCOTUS would allow under the interstate commerce clause (so watch out) while still telling law makers “don’t expect the court to do the dirty work of repealing selected laws for you, do it yourselves”. (We saw the same thing with gerrymandering - SCOTUS said, this is a political problem, solve it through politics not the courts.)
I guess the flip side of enumerated powers is - can a state mandate that visitors carry ID at all times, or would that be a violation of the free commerce rights of all citizens? Can a state say for example “you must buy a state ID from us within 3 days of setting foot in our state”? (What would the courts say about someone with no money to buy such?)
Also, a federal ID law would have to be enforced by state officials or else it would only be enforced by federal agents - which means in general, it would be sparsely enforced or selectively enforced. that “selectively” could get the law in trouble.
IANAL, but the constitutional provisions that were discussed in the Hiibel case were the Fourth Amendment’s protection against “unreasonable searches and seizures”, and secondarily the Fifth Amendment’s protection against self-incrimination.
If such a statute permitted law enforcement (federal or state) to “seize” people (and arguably to perform some sort of “search” of their “papers and effects”) solely to determine their identity and their compliance with a law requiring everyone to carry identification documents at all times while in public, then that might be held to be an “unreasonable” infringement on the liberty protected by the Fourth Amendment. (If such detentions go beyond merely requiring people to present their identity documents, and also permit police to demand people account for their movements and activities, this is even more clearly a “seizure” and a “search”, and probably also would raise Fifth Amendment issues, since that amendment’s protection against being compelled to make statements that might incriminate oneself has been ruled to pretty broadly protect a right to not answer police questions.)
As @md-2000 alluded to in the post just above this one, if law enforcement in practice didn’t stop everyone to determine compliance with this law, it could also raise Fourteenth Amendment issues of equal protection: What groups of people are being singled out, and why?
If you’re arrested and put in jail for hitting someone with a brick during a protest, your right to assemble isn’t being infringed on. You committed a crime separate from assembly. You can make the argument that breaking a mandatory ID law is no different, but I’m not sure that applies. In states with “stop and identify” laws, a citizen is only obligated to respond if there’s reasonable suspicion of criminal activity. Otherwise it would constitute unreasonable search and seizure under the Fourth Amendment. A mandatory ID law falls into a circular logic spiral under those circumstances, especially for a victimless “crime.”
There’s even some precedent for this. In the case Delaware v. Prouse, the US Supreme Court ruled an officer has made an illegal seizure when he stops an automobile and detains the driver in order to check his driver’s license and the registration of the automobile, because the officer does not have articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or either the vehicle or an occupant is otherwise subject to seizure for violation of law. One could argue that checking for current vehicle licensure/registration is more reasonable than checking a person’s ID for simply existing in public, so if the former won’t fly then I suspect the latter wouldn’t either.
Tenth Amendment arguments aside because others have covered them.
First, I assume that you are not talking about a situation where the police can detain people randomly in a “papers, please” situation. That would be against the Terry line of cases where the police must have reasonable articulable suspicion that you are committing a crime. I think such a thing would be right out.
So I assume you are positing a law which would require Americans to carry a national ID with them and then if they are lawfully stopped for suspicion of violating the law (whether this law or another) then they could be charged with failure to carry the National ID.
I would think it is contained under substantive due process and the right to travel under the Privileges and Immunities Clause. It is in the nature of history and tradition and implicit in the concept of ordered liberty that free people can travel or otherwise go about their business in public without seeking permission from the government or having to satisfy a condition precedent for doing so. The IDs we have now are all based upon regulated activity: If I want to travel on the roads by way of operating a car, then I am driving a dangerous two ton hunk of steel which the government has an interest in ensuring that I am able to operate safely.
But just walking in public? It seems inconsistent with the Constitutional structure.
I agree that a law that allowed a police officer to stop you at any time you were in public and ask you to produce your ID card would almost certainly fail a constitutional test. There’s a clear argument that this is an unreasonable search that would violate the fourth amendment.
But that, in my opinion, does not address the broader question of whether the state can require you to carry an ID.
I was just reading the Delaware v Prouse decision and I’ll admit I’m confused by a distinction the court seems to be making. The court ruled that the spot check in this particular case was a violation of the fourth amendment. But it acknowledged that spot checks are not be a violation in other cases. And I’m not clear on what the standard is they use to distinguish between a legal spot check and an illegal one.
This passage helps highlight the distinction:
An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles. See Adams v. Williams, 407 U. S. 143, 407 U. S. 148 (1972).
The short version is that automobile use is so pervasive as to make such spot checks too intrusive. One can believe that such passage lacks quality legal analysis or simply states a reality, but the Court believed that spot checks for drivers licenses would be far too broad whereas spot checks for other regulatory infractions, like having a fishing license, are more narrowly construed.
No, the decision was talking about spot checks of drivers and automobiles in both cases.
The question remains, however, whether in the service of these important ends the discretionary spot check is a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests which such stops entail. On the record before us, that question must be answered in the negative. Given the alternative mechanisms available, both those in use and those that might be adopted, we are unconvinced that the incremental contribution to highway safety of the random spot check justifies the practice under the Fourth Amendment.
In terms of actually discovering unlicensed drivers or deterring them from driving, the spot check does not appear sufficiently productive to qualify as a reasonable law enforcement pract’ce under the Fourth Amendment.
When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations 24-or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered-we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver.
Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.
Okay, so no spot checks without an articulable cause.
But…
This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.
What? After just repeatedly saying that spot checks were a violation of the fourth amendment, the decision says you can sometimes do it anyway.
Rehnquist seemed to see this same contradiction and questioned it in his dissent:
The Court holds, in successive sentences, that absent an articulable, reasonable suspicion of unlawful conduct, a motorist may not be subjected to a random license check, but that the States are free to develop “methods for spot checks that … .do not involve the unconstrained exercise of discretion,” such as “[q] uestioning . . . all oncoming traffic at roadblock-type stops . . . .” Because motorists, apparently like sheep, are much less likely to be “frightened” or “annoyed” when stopped en masse, a highway patrolman needs neither probable cause nor articulable suspicion to stop all motorists on a particular thoroughfare, but he cannot without articulable suspicion stop less than all motorists. The Court thus elevates the adage “misery loves company” to a novel role in Fourth Amendment jurisprudence. The rule becomes “curiouser and curiouser” as one attempts to follow the Court’s explanation for it.
Indeed, the Court does not say that these interests can never be infringed by the State, just that the State must infringe them en masse rather than citizen by citizen. To comply with the Fourth Amendment, the State need only subject all citizens to the same “anxiety” and “inconvenien[ce]” to which it now subjects only a few.
Yeah, I don’t understand it either. It seems that the Supreme Court has held rather consistently that pulling over this random driver or that one is very bad and in violation of the Fourth Amendment without reasonable articulable suspicion that the individual is committing a crime. However, a structured and organized spot check where all drivers are subject to a detention (based on immigration enforcement or drunk driving enforcement, but not narcotics enforcement) is okay where detention is brief and non-discriminatory.
This being GQ, I’ll just say that many people, including lawyers, do not understand the rationale of these distinctions.
You can avoid spot checks, you’re not required to go through them. You don’t have a choice when you’re pulled over.
As far as constitutional basis to oppose ID requires: the Supreme Court in Kolender v. Lawson said this
A person can not be required to furnish identification if not reasonably suspected of any criminal conduct.
A reasonable suspicion of criminal activity alone is insufficient to justify a patdown search
The person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.
Vagrancy ordinances cannot turn otherwise innocent conduct into a crime.
Personal liberty, which is guaranteed to every citizen under U.S. Constitution and laws, consists of the right of locomotion, to go where one pleases, and when, and to do that which may lead to one’s business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens, there, they will be protected under the law, not only their persons, but in their safe conduct. Any law that would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights, which the Constitution guarantees.
An innocent person cannot generally know when a police officer has reasonable cause to believe that his behavior warrants further investigation for criminal activity, and therefore cannot know when refusal to identify himself will be a crime.
No one may be required under peril of life, liberty or property to speculate as to the meaning of penal statutes.
Police knowledge of the identity of an individual they have deemed “suspicious” grants the police unfettered discretion to initiate or continue investigation of the person long after the detention has ended. Information concerning the stop, the arrest and the individual’s identity may become part of a large scale data bank. The serious intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest.
While police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer.
Fourth Amendment concerns are implicated where a state statute permits investigative detentions in situations where the police officers lack a reasonable suspicion of criminal activity based on objective facts.
The concern with curbing criminal activity cannot justify legislation that would otherwise fail to meet constitutional standards for definiteness and clarity.
A state criminal statute that requires persons who loiter or wander on the streets to provide a credible and reliable identification and to account for their presence when requested by a peace officer under circumstances that would justify a valid stop is unconstitutionally vague on its face within the meaning of the due process clause of the Fourteenth Amendment because it encourages arbitrary enforcement by failing to clarify what is contemplated by the requirement that a suspect provide a credible and reliable identification.
Statutory limitations on individual freedoms guaranteed by the U.S. Constitution are examined for substantive authority and content as well as for definiteness or certainty of expression. The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.
In providing that a detention under a state statute may occur only where there is the level of suspicion sufficient to justify a constitutional stop, a state insures the existence of neutral limitations on the conduct of individual officers.
I just had the same argument on Reddit, coincidentally. I don’t see how Congress could require everyone to have a mandated ID, because no enumerated power authorizes making such a law. I know the Commerce Clause has been stretched quite a lot, but U.S. v. Lopez tells us there’s a limit and Congress has no general police power to prohibit an act, nor to require everyone to perform an act (procuring a national ID).
My debate opponent felt it could easily be justified as a Necessary and Proper extension of the Naturalization Clause for everyone to have a national identity card.
For what it’s worth, it’s very easy to find recent instances of LEOs in the US arresting people for failing to ID where no crime has been committed, as well as the subsequent dismissed charges, lawsuits, settlements, and sometimes firing of the LEOs involved.
The problem I gather from the discussion above is forcing someone to produce their ID.
To detain (not arrest) someone, as happens when a car is pulled over, the police need reasonable articulatable suspicion of a crime and that the person is responsible. For cars, it’s the mythical improper lane change or broken taillight. For someone just walking down the street, it becomes much harder unless they match a suspect description of a newly reported crime. If you cannot just stop people and demand they produce ID, what’s the point of a mandatory ID law? For those police have reasonable grounds to arrest, or suspicion that they are involved in a crime, then police have the right to compel them to identify themselves (usually). So it’s kind of like a reverse Catch-22; you can’t require people to identify themselves unless you have reasonable grounds to stop them, in which case they will have to identify themselves anyway, so why is any specific ID needed?
IIRC the description of Hiibel the decision was not that they had to produce ID, but that they had to state who they were. Presumably, lying could then be obstruction of justice.
Nevada has a “stop-and-identify” law that allows police officers to detain any person they encounter “under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime”; the person may be detained only to “ascertain his identity and the suspicious circumstances surrounding his presence abroad.” In turn, the law requires the person detained to “identify himself”, but does not compel the person to answer any other questions put to him by the officer. The Nevada Supreme Court has interpreted that “identify himself” to mean to merely state his name. As of April 2008, 23 other states[2] have similar laws.
Is avoiding a checkpoint reasonable suspicious behaviour? Some people may just turn around because the lineup is too long.
There’s also two distinctions - requiring mandatory ID, and requiring people to have that ID on them at all times.
Did your opponent explain how natural born citizens might be compelled to maintain and carry such ID through the naturalization clause? Never mind (for now) the question of how requiring naturalized citizens to have an ID would aid Congress in its application of the naturalization clause.
I couldn’t find any - can you point me to some? All I could find were examples like this where the person was actually arrested for trespassing and the ID was only relevant in that with ID one could be given a ticket* while no ID would result in being booked . There are plenty of things wrong with that example - but she wasn’t arrested for not having ID.
- And that particular type of ticket is technically an arrest and is issued for violations, misdemeanors and some felonies. It’s not like a parking ticket. It just means that rather than holding you in custody until you are arraigned, the police give you a date to appear for your arraignment.
Not exactly a “papers please” scenario, but… One singularly intelligent thing I heard from Trump during his 2016 campaign was a promise to fix the eVerify system and make it work so than employers could ensure they were not hiring illegal immigrants. Like most promises, nothing came of it. Neither side of the political aisle wants to take the only reasonable but necessary solution for illegal economic migrants - penalizing those who pay them. Jailing the businessmen who write campaign donations is a nonstarter for both parties.
Requiring a citizen to produce a certain ID in order to get a job (if that is what the solution entails) is not exactly mandatory carry, but it is a form of coercion that’s hard to avoid for a vast majority of the population. Requiring it in a round-about way by forcing employers to see it, also, could be legally questionable. I wonder if requiring persons to have it on their person at all times while at work would be constitutional (even if it makes ICE raids a lot easier)?
I should also mention that CBP has complete fourth amendment exemption within 100 miles of the border to enforce customs laws. This also includes within 100 miles of any international airport.
The “100 Mile Border Zone” is definitely a thing under U.S. law, but I think it’s a serious exaggeration to say that CBP has a “complete fourth amendment exemption” within that area. According to the ACLU, even within that area, people still have a right so remain silent (and do not have to answer questions from CBP officers), and
AIUI, agents can subject people who are actually crossing the border (including people arriving in the United States on international flights, even if the “_________ International Airport” is deep in the interior of the country) to searches on a much more wide-ranging and discretionary basis.
CBP officers certainly can’t just waltz into someone’s house and start strip-searching everybody, just because that house happens to be within 100 miles of the border.