Granting driver’s licenses to undocumented immigrants under a new state law would not place county clerks at risk of federal prosecution, attorneys for New York state wrote in a new motion to dismiss a challenge to the statute.

Lawyers representing the state also argued in the new motion that Erie County Clerk Michael Kearns, who instituted the legal action, can’t represent his office.

“As a threshold matter, Kearns lacks capacity to bring this action in his official capacity as Erie County Clerk because, under New York’s law of capacity, political subdivisions and their officials cannot challenge state laws,” the motion said.

The state argued further that Kearns has alleged no injury to the Erie County Clerk’s Office, specifically, that would result from its compliance with the law.

The filing was a response to both the lawsuit, itself, and a different motion filed by Kearns last month to bar the state from enforcing the law while the litigation is ongoing. The law is scheduled to go into effect in December, according to the enacting legislation.

Kearns sued over the measure last month, claiming that the law is both unconstitutional and leaves him vulnerable to federal criminal charges if his office chooses to enforce it. If his office does not comply with the law, Kearns argued, he risks being removed from office by Gov. Andrew Cuomo.

Cuomo is one of three defendants on the suit, along with New York Attorney General Letitia James and state Department of Motor Vehicles Commissioner Mark Schroeder.

Kearns claimed in the lawsuit, filed last month in the U.S. District Court for the Western District of New York in Buffalo, that he could be charged with a felony for complying with the law. His office would be tasked with processing applications for, and granting, driver’s licenses to undocumented immigrants.

He pointed 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.”

But attorneys for the state argued in the new motion to dismiss that Kearns, and any other county clerk in New York, wouldn’t face federal prosecution for compliance. That’s because, the state said, county clerks and DMV employees aren’t allowed to ask applicants about their immigration status under the law.

“The Act forbids DMV employees (or county clerks acting as their agents) from inquiring about immigration status,” the motion said. “And none of its provisions expanding the methods by which applicants may prove identity and age for standard licenses provide DMV employees or their agents with knowledge of an applicant’s immigration status.”

Applicants for a driver’s license, under the law, have to supply certain documents to prove identity, such as a passport. That could include a foreign driver’s license, or consular documents. But the state argued that, even if the documents provided are from outside the country, a county clerk would have no way of knowing whether that person was undocumented.

Because of that, the state argued, Kearns and other county clerks would be able to avoid federal charges.

“Kearns cannot explain how he would know whether any particular license applicant is unlawfully present and thus cannot carry his burden to establish standing,” the motion said.

For that same reason, the state argued, the law does not conflict with the exclusive authority of the federal government to legislate matters related to immigration. The law does not attempt to change immigration policy, the state said, and officials wouldn’t know either way if they were granting a license to someone who is undocumented.

“States thus are broadly permitted to legislate with respect to civil rights, consumer protection, or workplace safety for all persons within their borders, including undocumented immigrants,” the motion said.

The kind of prosecution Kearns warned about in his lawsuit is also unprecedented, the state argued in its motion. Aside from New York, there are 12 other states that have laws allowing driver’s licenses to be issued to undocumented residents. Federal prosecutors haven’t brought, or threatened to bring, charges against public officials in those jurisdictions, the state said.

“Twelve other States, in addition to the District of Columbia and Puerto Rico, have been issuing driver’s licenses to their residents without regard to immigration status for years, and no official in any of these other jurisdictions has been prosecuted under 8 U.S.C. § 1324 in connection with the issuance of driver’s licenses,” the motion said.

The state also argued that court precedent, including from the U.S. Court of Appeals for the Second Circuit, has shown a narrow interpretation of the federal criminal statutes cited by Kearns.

In United States v. Vargas-Cordon, lawyers for New York state argued, the Second Circuit held that the felony charges Kearns warned about aren’t applicable unless the action was done “to help prevent the alien’s detection by immigration authorities or police.”

Kearns said in a statement Monday that his legal team is reviewing the state’s new motion to dismiss the litigation. He’s represented by the Erie County Attorney’s Office.

“My legal team and I are currently reviewing the State’s submission from late Friday evening and look forward to replying to their arguments,” Kearns said. “We believe that the Court will uphold longstanding law with respect to challenging the State government and understand the untenable position that this legislation demands of county clerks.”

A similar lawsuit has also been filed against the law by Rensselaer County Clerk Frank Merola in the Northern District of New York. The state filed a motion last week to transfer that case to the Western District, where it is expected to move for the litigation to be consolidated.

Arguments on Kearns’ motion for a preliminary injunction against the state enforcing the law are set for the last week of September.

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