2007-11-02 / Editorial/Opinion

It's My Turn

Defending Governor Spitzer's License Plan
By Andrew M. Cuomo Attorney General State of New York

The State of New York has determined that they will no longer require applicants for driver's licenses who do not have Social Security numbers to provide a letter from the Social Security Administration proving their ineligibility for those numbers. Legal challenges to this policy change have been commenced. We are defending these challenges and believe we will be successful. Our position is that this change will be found to be within the authority of the Commissioner of Motor Vehicles.

This is not about whether Social Security Numbers (SSNs) will be required - they never were and they still are not. Instead, the statute requires people who have SSNs to provide them. The change is only about what documentation has to be provided by people who do not have SSNs. Formerly, the Department of Motor Vehicles (DMV) required such people to prove their SSN ineligibility with Federal government documents that could not be obtained by an undocumented immigrant. Now, an applicant will prove SSN ineligibility by affirming - under penalty of perjury - that they have no SSN, that they are ineligible for one, and providing the DMV with identity documents, including a current and valid foreign passport, that support that status.

The State has determined that there are significant policy concerns, which are advanced by this policy change. Enhanced safety on the State's roads and reduction of automobile insurance costs are important considerations that the State believes will be promoted by these changes.

New York statutes give the Commissioner of Motor Vehicles the authority to determine what documents will be accepted from applicants for driver's licenses as proof of identity, age, fitness and SSN ineligibility.

The prior Commissioner determined that, as proof of SSN ineligibility, he would only accept a Social Security Administration letter of ineligibility with underlying documentation from the Department of Homeland Security (DHS).

We successfully defended that decision in the Court of Appeals (Cubas v. Martinez, 8 N.Y.3d 611 (2007)).

In order to defend that prior practice, we argued that the requirement of U.S. issued documents was not aimed at excluding undocumented aliens or otherwise enforcing the immigration laws, but rather it was aimed at providing the Commissioner with verifiable documents to guard against fraud. We presented that argument to the courts through the affidavits of DMV officials and the majority of the Court of Appeals accepted it.

It is doubtful that the prior practice would have been upheld if the Court had thought that the DMV was trying to enforce the federal immigration laws.

The current DMV Commissioner has determined that he has the ability to verify certain foreign-source documents, such as foreign passports, and he will therefore not limit applicants seeking to prove SSN ineligibility to providing Social Security Administration letters with DHS documentation. We will equally defend that decision in the courts of this State.

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