Does Florida's SB1718 violate the U.S. Constitution?

Politics & Elections
1

Continuing the discussion from Ron DeSantis 2024:

The question for debate is whether Florida’s recently passed law, SB1718, violates the federal constitution.

Constitutional Provisions

The Full Faith and Credit clause has been mentioned, from Article IV, section 1 of the United States Constitution:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Consider also the Privileges and Immunities clause from Article IV, section 2:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

and the Due Process clause from the 14th Amendment, section 1:

[N]or shall any State deprive any person of life, liberty, or property, without due process of law.

Provisions of SB1718

You may read the full text of SB1718 here: https://www.flsenate.gov/Session/Bill/2023/1718/BillText/er/HTML

Sections 3 and 4, together, make it a second degree misdemeanor to drive in Florida with a Connecticut “DO” or Delaware “Driving Privilege Only” license. The max fine is $500 plus a $20 court fee and max prison time is 60 days.

Section 3 (Click to show/hide)

Section 3 creates Florida Statute 322.033:

(1) If a driver license is of a class of licenses issued by another state exclusively to undocumented immigrants who are unable to prove lawful presence in the United States when the licenses are issued, the driver license, or other permit purporting to authorize the holder to operate a motor vehicle on public roadways, is invalid in this state and does not authorize the holder to operate a motor vehicle in this state. Such classes of licenses include licenses that are issued exclusively to undocumented immigrants or licenses that are substantially the same as licenses issued to citizens, residents, or those lawfully present in the United States but have markings establishing that the license holder did not exercise the option of providing proof of lawful presence.
(2) A law enforcement officer or other authorized representative of the department who stops a person driving with an invalid license as described in subsection (1) and driving without a valid license shall issue a citation to the driver for driving without a license in violation of s. 322.03.
(3) The department, to facilitate the enforcement of this section and to aid in providing notice to the public and visitors of invalid licenses, shall maintain on its website a list of out-of-state classes of driver licenses that are invalid in this state.

The list of invalid out-of-state licenses is currently published at https://www.flhsmv.gov/driver-licenses-id-cards/visiting-florida-faqs/ and has only two entries: Connecticut “DO” or “Drive Only” licenses, and Delaware licenses that read “Driving Privilege Only - Not Valid for Identification”.

 

Section 4 (click to show/hide)

Section 4 of SB1718 modifies Florida Statute 322.04 to read, in relevant part and with highlighted sections representing new text:

(1) The following persons are exempt from obtaining a driver license:
[…]
(c) A nonresident who is at least 16 years of age and who has in his or her immediate possession a valid noncommercial driver license issued to the nonresident in his or her home state or country operating a motor vehicle of the type for which a Class E driver license is required in this state, if the nonresident’s license is not invalid under s. 322.033 relating to proof of the licensee’s lawful presence in the United States.
(d) A nonresident who is at least 18 years of age and who has in his or her immediate possession a valid noncommercial driver license issued to the nonresident in his or her home state or country operating a motor vehicle, other than a commercial motor vehicle, in this state, if the nonresident’s license is not invalid under s. 322.033 relating to proof of the licensee’s lawful presence in the United States.
[…]

Section 5 forces Florida hospitals to inquire patients are lawfully present in the country, purportedly to report to the state what percentage of hospital patients are unlawfully present aliens.

Section 6 involves penalties for businesses that employ unauthorized aliens, and makes it a third degree felony for an alien to use a false ID to obtain work. (Fine up to $5,000 and prison time up to 5 years.)

Section 7 concerns the E-verify system which all large (>25 employees) businesses are required to use.

Sections 8 and 9 remove the process for unauthorized immigrants who have been in the U.S. since childhood to be admitted to the state bar, but is not retroactive and does not take effect until 2028 (giving current DACA students time to finish law school).

Section 10 enhances the penalties for human trafficking.

Section 10 (Click to show/hide)

(1) Except as provided in subsections (3), (4), and (5), a person who knowingly and willfully transports into this state an individual whom who the person knows, or reasonably should know, has entered is illegally entering the United States in violation of law and has not been inspected by the Federal Government since his or her unlawful entry from another country commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
[…]
(3) A person who transports a minor into this state in violation of subsection (1) commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) A person who commits five or more separate offenses under this section during a single episode commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
[…]
(6) Proof that a person knowingly and willfully presented false identification or gave false information to a law enforcement officer who is conducting an investigation for a violation of this section gives rise to an inference that such person was aware that the transported individual has entered the United States in violation of the law and had not been inspected by the Federal Government since his or her unlawful entry.
(7) A person who is arrested for a violation of this section must be held in custody until brought before the court for admittance to pretrial release in accordance with chapter 903.

(There are other sections too.)

~Max

2

I am of the personal opinion that sections 3 and 4 of the above Florida law are fully compliant with the Full Faith and Credit clause, and I challenge anyone who disagrees with me to argue otherwise. Acts of the Florida legislature are entitled to the presumption of constitutionality, but I can anticipate a couple arguments.

It might be argued that Connecticut and Delaware licenses grant the licensees the legal privilege to drive anywhere in the nation, and by refusing to let said licensees drive in Florida, the state of Florida is not giving faith and credit to the laws of Connecticut and Delaware. I suggest that Connecticut and Delaware do not purport to (and have no power to) bestow on their licensees the privilege to drive on Florida roads. Florida has jurisdiction over its own roads. By denying Florida nonresidents the privilege of driving on Florida roads, Florida has not impugned any laws, acts, or judgments of Connecticut or Delaware and therefore is not violating the Full Faith and Credit clause. Affected persons are still able to drive in Connecticut and Delaware, just not Florida.

It might be argued that Connecticut or Delaware licensees are entitled to the same privileges as a Florida citizen because of the Privileges and Immunities clause from Article IV of the Constitution. I think this argument almost has merit, but only in cases where the person with one of these licenses is actually a U.S. Citizen, claims to be a citizen, and is convicted nonetheless for driving without a proper license. It is my understanding that this situation would be highly unlikely as the licenses seem to be designed for people who can’t prove their lawful presence, let alone citizenship. Even in those unlikely circumstances Florida could argue that the privilege of driving - not a right - only attaches when citizenship is proved, and that the particular out-of-state license didn’t so prove. See also how Florida rejects out-of-state licenses for people under 16 years old; the age qualification applies equally to in-state and out-of-state residents. So too does the need for the license to certify the bearer’s citizenship.

~Max

cc: @DrDeth

3

I disagree. Privileges and Immunity in Article IV and the 14th Amendment is specifically granted to US citizens and not all residents. Yes Article IV talks about citizen of the states but (and especially after the 14th Amendment) that is not the same as a resident. Thus it does not apply to non-citizens (legally here or not) which is exactly the point of this law.

4

First, thanks to the Op for starting this.

Except that those licenses, altho primarily issued to undocumented residents, sometime Citizens have them also.

And of course residents do have many of the same rights as citizens.

Also look at the 14th
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The second part applies to “any person”, the first to citizens only.

5

An important point, thank you. Makes you ponder, has Florida looked it up and ascertained for a fact those specific classes of CT and DE licenses are indeed issued “exclusively to undocumented immigrants who are unable to prove lawful presence”, and don’t include “this guy was one document short of what it takes to comply with Real-ID?” ('cause, the Real-ID Law lets states keep issuing noncompliant licenses, just don’t try to get on a plane or enter a federal facility using one as ID). Or is it something they will ass-u-me? 'Cause it sounds as if they’d better be damn sure that is the case or some snowbirds may get testy.

Strictly speaking, a Driving License is supposed to be evidence that the issuing state has tested and approved the holder to drive a motor vehicle in the public roads. The use as “official” ID was added on later and often first de facto rather than de jure (hey, until the 60s many states did not include pictures in them), taking advantage of the convenience of that most people starting with the Boomers had one.

6

I was referring specifically to Privileges & Immunities. Non-residents do not have the Constitutional right.

7

For Delaware, Florida looks in the clear

Senate Bill 59 was passed by the 148th General Assembly in June 2015. The Bill authorizes and allows the Delaware Division of Motor Vehicles (DMV) to issue a Driving Privilege Card (DPC) to undocumented Delaware residents of any nationality. The DPC will NOT be considered a valid form of identification.

The Delaware DPC will be considered a valid driver license that the Delaware DMV issues for driving purposes only within the state of Delaware. The DPC is only available to foreign Delaware residents who are unable to produce legal presence within the United States and meet certain eligibility requirements.

Emphasis Added

8

We agree on that point: the Privileges and Immunities clause (art. IV) only applies to U.S. citizens. But it’s plausible that some people with these Connecticut DO licenses or Delaware DPC licenses could actually be U.S. citizens. With the rest of the paragraph you quoted from, I argue that the law is compliant with the constitution, even in that specific set of circumstances where a U.S. citizen is convicted.

~Max

9

I think Delaware is granting it’s residents permission to drive in Delaware. By agreement or statute, all states recognize drivers’ licenses from other states. I don’t see any constitutional requirement that they do so. Perhaps the commerce clause would provide a better basis than the privileges and immunities clause.

The Dormant Commerce Clause is used to prohibit state legislation that discriminates against, or unduly burdens, interstate or international commerce.

Dormant Commerce Clause - Wikipedia

10

Possibly, but my counterargument remains unchanged. Florida licenses require proof of lawful presence in the U.S., so it isn’t discriminatory to reject out-of-state licenses that are granted without proof of lawful presence. We already reject out-of-state licenses for minors under the age of 16, for an analogous example.

On another note, the provisions of SB1718 I’m most concerned about are sections 5 and 10. Section 5 requires hospitals to ask patients if they have a legal right to be here. That’s going to discourage people from going to the hospital and there’s a very real chance it will affect patient care no matter how strongly the law prohibits the same. It’s conditioned on whether hospitals accept Medicaid and I wonder whether it might implicate federal law (the Commerce and Supremacy clauses).

Section 10 is the most egregious section of this law, by far. Just interpreting the statute isn’t clear. What does it mean to be inspected by the Federal Government? Is it an element of the crime that the person knows or reasonably knows the individual hasn’t been inspected since unlawful entry? This implicates the 14th Amendment’s due process clause because due process demands that criminal statutes clearly delineate the elements of a crime.

~Max

11

I asked the question almost 10 years ago and walked away under the assumption that the full faith and credit clause does not apply here. States are free to explicitly ignore drivers license from other states for any reason, and the only reason they don’t is because each state has a statute on the books that specifically grants national (and in another statute, international) reciprocity. IANACS, but that’s been my understanding ever since that thread. So I agree with Max here, the statute appears constitutional.

Given that, it seems so narrowly worded as to be not much more than virtue signaling (shocking for FL, I know). As pointed out above, Delaware’s DO license was only ever intended for use within Delaware, and Connecticut’s FAQ says:

The Connecticut drive-only license may be honored in other states. However, you should check with the other state before driving in it.

So Connecticut never had the expectation that this would be a national license either.

If either state wanted to get around the FL ban on this type of license, they could simply re-word the language in their own statutes to remove the part about undocumented individuals. Simply open it up to anyone who chooses not to present proof of residency, whether they’re actually undocumented or not, and the FL statute is moot. Is that why these two licenses are the only one on the blacklist at this point?

12

Here is my question then and it is more practical than theoretical. Should the government (state or Federal) give you the rights of a citizen if you are but can’t prove it? Basically just on your word?

13

It doesn’t AFAIK the privilege to drive in all 50 states depends on an interstate compact.

14

The only interstate compacts I can find (there’s several, evidently, the big one that Sicks_Ate linked to in that thread and then some smaller regional ones) have to do with data sharing, especially of traffic violations. Happy to be proven otherwise, but I think Shagnasty nailed the answered to my question in response #2.

15

Yes. Because the USA has not gotten to “papers please”. There is no national ID card.

Not to mention those undocumented people have jobs people born here dont want, and often cant do. Who will pick the crops?

The only reason for this law is racism and bigotry.

While the issuance of drivers’ licenses in other states generally does not obligate Florida to issue identification to undocumented people, the provision not recognizing licenses issued by other states is likely to violate the U.S. Constitution’s Full Faith and Credit clause, which directs states to recognize the laws, records, and judicial proceedings of every other state.

16

So with no documentation of citizenship, the State Department should have to issue me a passport on demand?

17

Of course. On what basis could the answer be anything else?

Is that a right of a citizen?

18

Not sure if it is a right or a privilege as the State Department or court can revoke it. But it is limited to US citizens.

19

Section 4 of SB1718 modifies that very statute to exclude licenses issued to undocumented immigrants. You can read the changes (highlighted in green) in the spoiler from my original post.

This isn’t the only exception. The old law would only recognize out of state licenses for drivers over 16 years old.

~Max

20

Yes, but no. It excludes license categories that are explicitly created for undocumented individuals. There’s nothing in SB1718 that gets around a state issuing regular licenses to undocumented individuals, or creating a new license category for everyone that simply doesn’t require the applicant to present proof of residency.

Florida may argue in court that such a license meets the criteria of its own statute, but the statute is narrowly worded. Surprisingly so, IMO.

eta: But yes, thank you for pointing out that this is in the exact sort of statute Shagnasty was referring to in that old thread. I have a hard time finding them. Still haven’t found Ohio’s for instance.