Wednesday, December 05, 2007

It's early, but Pearce is already proposing unconstitutional bills

Maybe it's just an early Christmas gift to "kill 'em and let God sort 'em out wing" of the Republican Party, but state Rep. Russell Pearce (R-National Alliance) has already submitted, with Rep. Warde Nichols (R-LD21), HB2012. The bill may be putrid, but at least it's short.

In its entirety -

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 41, Arizona Revised Statutes, is
amended by adding chapter 44, to read:




41-4401. Out-of-state driver licenses; identification purposes; prohibition

This state and political subdivisions of this state shall not accept as a primary source of identification a driver license issued by another state if the other state does not require that a person be lawfully present in the United States under federal law in order to receive the driver license.

A gentle reminder of the what Article IV, Section 1 of the U.S. Constitution has to say on the subject -
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.
What's next for Pearce? A motion for Arizona to secede from the Union?

Of course, he could just be working to see that Sen. Jack Harper (R-LD4) doesn't repeat as winner of the 'Legislative Loon' award for the 2008 session of the lege. :)


AZW88 said...

maybe the succession should be the state south of the Gila from the rest of the state.... Viva Baja Arizona!

Desert Beacon said...

Ah, but what's a little thing like the Constitution's Full Faith and Credit provision among Conservatives, which if I remember correctly once sought to uphold a strict reading of that document?

Richard said...

I think the law would run more afoul of the Dormant Commerce Clause, in that it gravely and without adequate justification burdens an interstate economic activity -- driving -- than the Full Faith and Credit Clause.

The Full Faith and Credit Clause of the Constitution generally requires states to recognize out-of-state court judgments. But the Constitution otherwise leaves each state with the authority to decide who is licensed to do what within that state.

Congress can preempt such licensing with federal legislation. If the activity is constitutionally protected, like freedom of speech or religion, a state can't interfere with it through a discretionary licensing scheme (making publishers apply for government licenses, for example), but the Supreme Court has never ruled that driving is a constitutionally protected activity.

A state has no constitutional obligation to recognize driver's licenses from other states. Maybe there's some federal law mandating such recognition, but probably states just do it as a matter of comity and to get reciprocity for their own citizens.

States often refuse to recognize out-of-state professional licenses. I can tell you from personal experience that a Florida license to practice law is not reciprocated by many other states.

cpmaz said...

Richard -

You have a good point, but the wording of the bill doesn't concern driving privileges, just the use of a government-issued driver's license as an identification document.

Hmmm...on the other hand, maybe the fact that if this is passed and becomes law (not that I think that it will), the state would now get to disregard basic documents issued in other states. That would surely discourage interstate commerce.

Richard said...

Well, but driving itself is considered a privilege. We don't think of it as such, but it is; it is not a constitutional right on the federal level, either in the text of the Constitution nor in Supreme Court caselaw. My only exposure to Arizona constitutional law was in an ASU journalism graduate course in Arizona Media Law, so perhaps you know of a provision in the Arizona constitution that declares driving a right? Or has the state supreme court ruled to that effect?