The Minuteman Protection Program: USJF opinion on licensing rights of illegal immigrants

January 12, 2007 @

Posted by: Admin on Friday, January 12, 2007 – 11:02 AM PST

by Attorney Gary Kreep
General Council to Minuteman Civil Defense Corps


The Right To A Drivers’ License

Each state and territory that is part of the United States of America has adopted statutes, rules, and/or regulations governing the issuance of a drivers’ license. It has been held that the so-called “right” to drive is not, in reality, a right, but is subject to compliance with all applicable laws, rules, and/or regulations. To use the words of one court, it is a “privilege”, not a “right”.

Several states have enacted legislation denying drivers’ licenses to illegal aliens. As one can imagine, those statutes have been challenged in Court. This article analyzes the results of those challenges.


In 2004, the State of Tennessee amended Title 55 of the Tennessee code to provide that drivers’ licenses could only be issued to United States citizens or to lawful permanent residents of the United States (Tennessee Code Annotated Section 55-50-321(c)(1)(C). Litigation challenging the law was filed, requesting a preliminary injunction prohibiting enforcement of the legislation.

The Amendment challenged provided for the issuance of a “driving certificate” as opposed to a “drivers’ license” for a class of people which could include illegal aliens. The difference between the certificate and the license was that the certificate was required to “clearly display on its face a phrase substantially similar to ‘For driving purposes only – not valid for identification.'” Tennessee Code Annotated Section 55-50-102(6).

The case, League of United Latin American Citizens (LULAC), et al., v. Bredesen, 2004 WL 3048724 (M.D. Tenn.), was decided on September 28, 2004.

In its holding, the Court pointed out,

“Plaintiffs alleged that by prohibiting illegal aliens and those aliens who have not been granted permanent resident status from obtaining a drivers’ license, the drivers’ license legislation creates an unconstitutional classification under the Equal Protection Clause based on alienage or national origin. … This case is not about ‘citizens’ versus ‘aliens’. Plaintiffs argue that classifications based on alienage are inherently suspect. But, the statute at issue does not classify persons based on alienage. The statutory classification in this case is between citizens and lawful permanent resident aliens on the one hand and illegal aliens and those aliens who are not permanent lawful residents on the other hand. … The drivers’ license law does not distinguish among persons because of a protected classification. … In any event, the State has shown the legislation furthers a compelling state interest by the least restrictive means. … As discussed below, the State has a compelling interest in balancing driver safety, on the one hand, and the deterrence/prevention of crime and terrorist activity, on the other. … In other words, ‘illegal alien’ is not a constitutionally suspect class. … First, given their status, illegal aliens do not have a constitutional right to move freely about the country or the state. … Plaintiffs have not demonstrated that illegal aliens and those legal aliens who are not permanent lawful residents have a constitutional right to a State-issued identification card that is acceptable to third parties. … Indeed, it is Plaintiffs who are attempting to have the State regulate immigration by seeking to have the State issue an identification card that makes illegal aliens and restricted or temporary aliens appear to have a status indistinguishable from citizens and lawful permanent residents – a status that they have not sought, or are unable to obtain, from the federal government. Plaintiffs have not cited any authority compelling a state to provide such an endorsement. … For the reasons described above, the Motion for Preliminary Injunction … is DENIED.”


John Doe No. 1 v. Georgia Department of Public Safety, 147 F.Supp.2d 1369 is a case from the United States District Court for the Northern District of Georgia, Atlanta Division, decided on June 6, 2001. The case was brought by “an illegal alien residing in the State of Georgia.” He alleged that Georgia State Law restricting issuance of drivers’ licenses to illegal aliens violated the Equal Protection Clause of the United States Constitution. He further claimed, in this class action suit, that the law violated his constitutional right to interstate travel.

The Court held:

“There is no express provision in the Constitution setting forth a right to travel. Nevertheless, the Supreme Court has recognized a fundamental right to interstate travel. … The Plaintiff’s argument begins with the remarkable assumption that an illegal alien has the same fundamental rights as a citizen or lawful resident alien. Plaintiff is unable to cite any case law in support of this assumption. It would be curious indeed if the law gave illegal aliens a fundamental right to travel about this country when their mere presence here is a violation of federal law. Illegal aliens are subject to immediate arrest and ultimate deportation. It strains all bounds of logic and reason to say that such a person has a fundamental right of interstate travel. … The Georgia statutes in question do not burden interstate travel by citizens or legal aliens. … The state simply requires that an applicant establish residency before demanding state services. … A legal resident of Georgia does not have a constitutional right to a drivers’ license. Regulation of the driving privilege is a quintessential example of the exercise of the police power of the state … The State of Georgia has a legitimate interest in not allowing its governmental machinery to be a facilitator for the concealment of illegal aliens. Second, Georgia has a legitimate interest in limiting its services to citizens and legal residents. … For all of these reasons, the Georgia statute passes the test set forth by the Supreme Court … It is a legitimate exercise of the police power to regulate and supervise those authorized to exercise the privilege of driving automobiles on the highways of Georgia.”


On November 13, 2003, a class action suit was filed with four lead plaintiffs, using pseudonyms, alleging that the refusal of the State of Iowa to issue drivers’ licenses to illegal aliens violated state and federal constitutions. The Polk County District Court granted the motion of the State of Iowa to dismiss the case and plaintiffs appealed. The decision was issued on February 18, 2005, in the Supreme Court of Iowa, Case No. 692NW2D812, captioned Sanchez, et al., v. State of Iowa.

The Court held,

“We conclude this licensing scheme is rationally related to the legitimate state interest of ‘not allowing its governmental machinery to be a facilitator for the concealment of illegal aliens. … Denying drivers’ licenses to the class of illegal aliens does not violate the equal protection clauses of the federal and state constitutions … The classes do not have a viable claim under that §1983 (42 U.S.C. § 1983) because their constitutional rights have not been violated … In addition, because the equal protection claim raised by the classes is meritless, their §1981 (42 U.S.C. § 1981) claim must also fail … We conclude that the practice of denying drivers’ license to illegal aliens violates none of the statutory and constitutional provisions raised by the classes. Accordingly, we affirm the Judgment of the district court.”

Thus, in the three states where the issue of the denying of drivers’ licenses to illegal aliens has been litigated on the merits, the state laws involved have been upheld in each case. However, opponents of such laws point to what they claim are the victories of illegal aliens in other states on this issue, discussed in Section II below.


In June, 2002, the Minnesota Department of Public Safety (DPS) adopted new regulations, amended an existing regulation and repealed a regulation, all relating to the proof of identity for the issuance of drivers’ licenses in that state. The new rule required drivers’ license applicants to prove that they were residents of Minnesota and either citizens of the United States, or lawful short-term, indefinite, or permanent residents of the United States. Minnesota state agencies are required, in adopting, repealing, or amending regulations, to follow procedures mandated under state law, including public hearings. The agencies may, upon good cause, not hold such hearings, but a finding must be made that the hearing and other statutory requirements would be “unnecessary, impractical, or contrary to public interest” and the agencies may be required to show “a serious and immediate threat to the public health, safety, or welfare.” Minnesota Statute Section 14.388 (2002). There followed a series of administrative hearings before an Administrative Law Judge and then the Chief Administrator Law Judge, resulting in a finding that the proposed rules were “a proper use of the Good Cause exemption” and approved them. The rules took effect July 12, 2002. Thereafter came this challenge.

On March 11, 2003, the Court of Appeals of Minnesota in Jewish Community Action, et al., v. Commissioner of Public Safety, Case No. CX-02-1214, C4-02-1290, declared the rules invalid. The Court held,

“The exempt rules address a threat to public safety that arguably might be both serious and immediate. But because the DPS has not demonstrated with reasonable particularity how rule-making through public procedures would have harmed the public interest, the statutory requirements governing Good Cause exempt rule making have not been satisfied.”

In other words, because the Minnesota Department of Public Safety did not comply with Minnesota State law concerning the adoption of said rules, they were invalid. This ruling does not address the merits of the rules themselves, only how they were promulgated.


The Indiana Court of Appeals case, Villegas, et al., v. Silverman, No. 49A02-0410-CV-823, was decided on August 12, 2005. The case was a class action against the Commissioner of the Indiana Bureau of Motor Vehicles brought by three illegal aliens who were unable to obtain State of Indiana drivers’ licenses. The denial of the drivers’ licenses was based upon regulations enacted by the Indiana Bureau of Motor Vehicles in 2002. The trial court granted summary judgment in favor of the Bureau of Motor Vehicles, and Plaintiffs appealed. The appellate court reversed the decision of the trial court and directed the trial court to enter a summary judgment in favor of Plaintiffs.

The Court held,

“We hold that the new identification requirements are a rule, and because they are not promulgated in accordance with the ARPA, they are void and without effect.”

In other words, because the Indiana Bureau of Motor Vehicles did not comply with the requirements of the Indiana Administration Rules and Procedures Act (ARPA), the rules were void. This decision, in a case in which the Plaintiff or illegal aliens were represented by the Indiana Civil Liberties Union, did not deal with the merits of the regulations, just the faulty procedures that were used to enact them.

These two states cases dealt with challenges to the way that administrative rules were implemented by the various state bureaucracies. The cases did not deal with the merits of the issue, and, despite the claims of supporters of drivers’ licenses for illegal aliens, do not provide any legal standing for the claim that laws prohibiting drivers’ licenses to illegal aliens are invalid.

Discussed below is a case from Illinois which, although it did not deal with the issue on the merits, resulted in useful and interesting comments by a federal court in a case decided over 12 years before the September 11, 2001, attacks on our country.


Doe v. Edgar, Case No. 88C579, was decided August 4, 1989, in the United States District Court for the Northern District of Illinois, Eastern Division. It was a class action filed by “undocumented aliens” alleging that the Defendant, Illinois Secretary of State, Jim Edward, violated their statutory and constitutional rights by intentionally discriminating against them because they were “undocumented aliens”. The litigation challenged the constitutionality of Illinois to revise the statute of chapter 95-1/2, paragraph 6-1.06, which requires an applicant for an Illinois drivers’ license to provide a Social Security number on the application. Both parties moved for summary judgment, and the Court denied both motions. The Court noted that a variety of issues had been raised without substantial factual support and, in part, remanded the case so that both sides could collect such evidence. However, the Court made a number of findings.

“For example, undocumented aliens are not a suspect class; their undocumented status is not ‘an absolutely immutable characteristic since it is the product of conscience, indeed unlawful, action’ … In addition, the plaintiffs do not have a ‘fundamental right’ to an Illinois drivers’ license.’ … The Court must first consider the stated purpose of the challenged provision. The purpose of the social security number requirement, according to the defendant, is ‘to prevent applicants from obtaining fraudulent drivers’ licenses and to promote supervision and safety on the state’s highways.’ These are, as the plaintiffs can see, legitimate state interests … There is, as far as this Court is aware, no cause of action under federal or state law, for identifying the person who is an undocumented alien, as an undocumented alien.


Each time a statute restricting the rights of illegal aliens to have a drivers’ license has been challenged on the merits, it has been upheld. The only two “successes” pointed to by supporters of the claimed right of illegal aliens to have drivers’ licenses, were victories on procedural matters concerning how the regulations barring the issuance of the drivers’ licenses were promulgated, not the merits of the laws. Finally, there is the Illinois decision, pre-September 11, 2001, which, although not ruling directly on the matter, provides interesting comments from a federal court.

In conclusion, it appears, at least so far, all courts ruling on the merits of the matter have ruled that it is legal to bar illegal aliens from obtaining drivers’ licenses.

Comments are closed.

Recent News

© 2020 United States Justice Foundation.