A protester holds a sign as members of the state Assembly speak in favor of legislation of the Green Light bill granting undocumented immigrants driver's licenses during a rally at the state Capitol in Albany, New York. Photo: Hans Pennink/AP

A new law in New York that allows undocumented individuals to obtain driver's licenses is being challenged in federal court by Erie County Clerk Michael Kearns, who argued in a lawsuit filed Tuesday that the statute is both unconstitutional and puts him in an impossible situation.

Kearns claimed in the complaint that the so-called Green Light Law is preempted by federal immigration law and, therefore, unenforceable at the state level.

He's represented in the litigation by the Erie County Attorney's Office. The lawsuit was filed in the U.S. District Court for the Western District of New York, which rarely sees such high-profile civil litigation.

Kearns is hardly alone in his opposition to the bill; a handful of other county clerks in the state have also voiced criticism of the measure, though Kearns is the only plaintiff in the suit to be filed Tuesday.

The litigation is targeted at Gov. Andrew Cuomo, New York Attorney General Letitia James, and Mark Schroeder, the current commissioner of the state Department of Motor Vehicles. Cuomo's office deferred comment to the state Attorney General's Office.

James vowed to defend the law in court last month in a surprise statement after Cuomo had expressed concerns over U.S. Immigration and Customs Enforcement possibly using data from the program to track and locate undocumented individuals for deportation. He ended up signing the bill after James said her office found it constitutional.

James, in a statement Tuesday, said her position on the legislation hasn't changed.

“The Green Light law is well crafted and the Office of Attorney General has concluded that it is constitutional,” James said. “As the state's attorney and chief law enforcement officer, my office will vigorously defend it.”

Now, Kearns is challenging that interpretation in a relatively straightforward way. He argued in the lawsuit that the Green Light Law conflicts with federal immigration law, and therefore would make it a crime for him to approve driver's licenses for undocumented individuals.

That argument is based on the Supremacy Clause of the U.S. Constitution, which preempts state laws that appear to regulate an area where the federal government has been determined to have exclusive jurisdiction, such as immigration.

The complaint points to a section of federal law, 8 U.S.C. §1324, that makes it a felony for someone “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place.”

At the same time, the complaint said, Kearns could be removed from office by Cuomo if he doesn't agree to grant driver's licenses to undocumented individuals. Cuomo has the power to do so under state law.

“If [Kearns] implements the Green Light Law, he risks prosecution under a federal statute that makes it a crime to conceal, harbor, or shield from detection an individual illegally in the United States. If he fails to implement the Green Light Law, he risks retaliation by Defendants, including removal from office,” the lawsuit said. “Something must give.”

Kearns also claimed that the law conflicts with the Immigration and Reform Control Act, a federal law that essentially bars employers from knowingly hiring undocumented immigrants, unless they have an appropriate visa.

He pointed to public comments made by supporters of the bill, who have said the legislation would allow undocumented individuals to more easily travel to and from work. A sponsor of the bill said as much in a press release after it passed, for example.

“This legislation allows for undocumented immigrant New Yorkers, who contribute to our state economy in so many ways, to drive safely to and from school, work, and home,” said Assemblyman Marcos Crespo, D-Bronx, last month.

That's part of why Democrats proposed the bill in the first place. They've argued that undocumented individuals are already driving now—but without a license. The law, they've said, will allow them to go through the same process as other New York residents to become licensed drivers.

There was also an argument made during discussions on the bill that it would make roads safer by requiring undocumented individuals to register and insure the vehicles they're driving. They would also be able to use the licenses as a form of identification when needed.

There were concerns, largely from Cuomo, that the identifying information of undocumented individuals obtained by the state would be mined by the federal government for purposes of deportation. The legislation appeared to address that issue by precluding the release of that data without a court order, judicial warrant or subpoena.

But Cuomo warned during a radio interview Tuesday morning that the federal government could bring its own lawsuit against the state seeking easier access to state data on immigrants who've applied for a license.

“Can you stop the federal government from accessing the data?” Cuomo said. “I believe that's going to be a lawsuit. The solicitor general and the attorney general say we can win. I hope they're right.”

Republicans in the state Legislature had expressed different concerns, namely over their position that the law would undermine public safety. Senate Republican Leader John Flanagan, R-Suffolk, cheered the lawsuit filed by Kearns on Tuesday and echoed his arguments against the measure.

“The bill Democrats approved last month to allow illegal immigrants to obtain driver's licenses rewards lawbreakers and flouts federal law by preventing legitimate immigration enforcement, which the Senate sponsor bragged about on the very same night the bill was taken up by our chamber,” Flanagan said. The bill was sponsored by Sen. Luis Sepulveda, D-Bronx.

Kearns, through the suit, is seeking to have the federal court rule the Green Light Law unconstitutional on its merits and enforce a permanent injunction against state officials implementing the statute. It's scheduled to take effect in December, according to the bill.

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