Testimony of Representative Brian Flaherty regarding Federalization of State Drivers' Licenses

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September 17, 1998

Testimony of Representative Brian Flaherty
Connecticut House of Representatives
On Behalf of The National Conference of State Legislatures

Regarding "Federalization of State Drivers' Licenses"

Before The House Government Reform and Oversight
Committee's Subcommittee on National Economic Growth,
Natural Resources and Regulatory Affairs

Table of Contents:

Repeal Section 656 (b)
Pass H.R. 4197
Avoid Preemption
Bad Sections of Law Can Only Produce Bad Regulations
Abusing the Unfunded Mandate Reform Act
Conduct a Study, if There is a Need
Federalism Revisited

Mr. Chairman, members of the Subcommittee. My name is Brian Flaherty. I am a state representative from Connecticut. I serve as the Deputy Minority Leader in the Connecticut House of Representatives. I appear before you here today on behalf of the National Conference of State Legislatures. I am vice-chair of NCSL's Assembly on Federal Issues. The Assembly formulates NCSL's state-federal policies that serve as the foundation for our organization's advocacy activities in Washington, D.C.

The National Conference of State Legislatures represents the legislatures of the fifty states and the nation's commonwealths and territories. This organization is an outspoken and firm believer in our federal system of government. We consistently defend state authority, resist preemption and unfunded mandates, seek balance and flexibility in the delivery of services through state-federal partnerships and act to protect the intergovernmental fiscal system.

Just over two years ago, a letter sent to the House and Senate leadership on a pending conference committee on an illegal immigration reform bill stated: "…we write to you today to express our strong belief that the House should not accept the extremely ill-advised provisions of the Senate bill that would federalize driver's licenses and birth certificates. These provisions…are antithetical to basic principles of federalism and would impose new unfunded mandates on state and local governments." The letter goes on to say that "…by forcing states to imprint (or verify) Social Security numbers for driver's licenses, the federal government would be scorning the considered judgement of 37 states that for reasons of crime prevention and personal privacy choose not to use Social Security numbers as all-purpose identifiers." Mr. Chairman, that letter was one that you and fourteen of your House colleagues signed. Yet, the conference committee unfortunately went on to accept this Senate provision that ultimately became Section 656 (b) of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act.

REPEAL SECTION 656 (b).

My message to you today, Mr. Chairman and members of the Subcommittee, is quite simple. Section 656 (b) of that 1996 act must be repealed immediately. That section is a gross usurpation of state authority. It is an unfunded mandate. It is preemption at its worst. It is counter-devolutionary. It contradicts state experience. It federalizes an activity that fundamentally should remain with states. And, because that section requires federal regulations to implement, it is about to breed bad and misguided regulations.

PASS H.R. 4197.

The answer to this dilemma is also simple. We need quick enactment of H.R. 4197, sponsored by Mr. Barr, who sits on this subcommittee, and a bipartisan group of cosponsors. While I realize that you are in the waning days of this session, this section of the law is so egregious that it merits an expeditious repeal. H.R. 4197, when passed, will produce two immediate benefits: (1) it will rid us of an absolutely unnecessary preemptive section of the law and return the driver's license issuance process entirely to the states, where it belongs, and (2) it will prevent the situation from worsening through the promulgation of regulations.

AVOID PREEMPTION.

When Congress considers an issue that may include preemption, there is typically a debate, sparked by the presentation of competing arguments, as to why or why not federalization of what is a traditional state activity ought to be pursued. Nonetheless, state capability to issue driver's licenses was never the subject of debate. No Member of Congress, to my recollection, charged the states with ineptness. No one suggested that the federal government could accomplish issuance and production tasks more effectively. Therefore, unlike disagreements NCSL has had over takings, internet tax, financial services modernization, product liability and health insurance regulation initiatives, the contents of those disagreements were absolutely non-existent when Congress considered federalization of the driver's license issuance process. Yet, the end result of the law is preemption and activity that counters state experiences.

BAD SECTIONS OF LAW CAN ONLY PRODUCE BAD REGULATIONS.

Some would argue that a "fix" to the federal regulations will tame the counter-devolutionary content of 656 (b). Let me make it perfectly clear that a bad, misguided section of law will only produce bad, misguided regulations. The problem is the law!

The National Highway Traffic Safety Administration has received thousands of comments on its proposed regulations for implementation of Section 656 (b). It is not surprising to me that the overwhelming preponderance of the comments are negative, both toward the section of law generally and toward the regulations specifically. The first round of comments was so unquestionably negative that the comment period was extended. My sense is that the extended comment period, through October 2 of this year, is just going to give you more evidence that only a repeal of Section 656 (b) will cure the situation.

NCSL submitted its comments on the regulations on August 3. Several state legislators have also submitted comments that mirror our organization's general concerns. While I have no intention of going into all of our comments, a sampling of the problems cited in the regulation include the following: (1) the regulation states that "the driver's license or identification document shall contain a social security number that can be read visually or by electronic means…" The movement among states regarding driver's licenses is against mandatory use of social security numbers and instead assignment of a random identification number (or allowing the driver the option of using his/her social security number). The bottom line is this: there is no compelling reason for forcing states to retreat to mandatory use of social security numbers. It defies our experience and opens the door to concerns regarding privacy and security that are best left closed.

(2) The regulations state: "…that all states shall verify the validity of each applicant's social security number with the Social Security Administration…" The overwhelming number of states do not have centralized driver's license issuance. Therefore, all local and regional motor vehicle offices would require installation of equipment making such verification possible. Some states do not use social security numbers in the application process. For them, this is a major, compulsory turnaround on their chosen public policy. Perhaps a larger problem is the matter of turnaround time on license applications. Getting a driver's license is one of those moments when citizens come into direct, face-to-face contact with government. There have certainly been problems with long lines. Progress has been made in several states to remedy these situations. It is certainly not in my interest, and I would assume not in yours, to entertain ideas that will extend the wait at motor vehicle license offices. However, section 656 (b) and its regulations are not likely to help. NCSL only sees more complication, therefore more time, as a result of the "federal" presence in the "state's" business.

(3) The regulation states that "the application process for the driver's license or identification document shall include the presentation of such identity as required by regulations promulgated by the Department of Transportation…and the agency proposes to list acceptable primary and secondary documents." The end result here is obvious - a federally-dictated, one size fits all, the heck-with-what-the-state-experience-is document. States become nothing more than a commandeered administrator of federal policy. Also, you ultimately end up with licenses that "meet federal standards" or those that are likely not to be accepted for federal identification purposes because they do not have social security numbers or meet other federally-desired guidelines.

I could go on and on. Instead, I will submit for the record NCSL's comments on the proposed regulation. I also want to repeat that we can sit here all day long and beat up on the regulators and their proposed regulations. We could also discuss modifying the law in hopes that more reasonable regulations would follow. However, the only way we can bring common sense and reasonableness to this issue is to agree to repeal Section 656 (b).

ABUSING THE UNFUNDED MANDATE REFORM ACT

I would be quite remiss, Mr. Chairman and Subcommittee Members, not to mention the Unfunded Mandates Reform Act. I believe that UMRA has been a positive influence on the legislative process. None of us ever believed that UMRA would halt, forever, any unfunded federal mandate. For the most part since its enactment, the tide of unfunded federal mandates has ebbed significantly. There are a few notable exceptions, and perhaps, not surprisingly, they deal with the subject of today's hearing. When Section 656 (b) was adopted, Senate sponsors of the language, in order to skirt the UMRA point of order, spread out the implementation time of the proposed law. In doing so, they were able to undercut a cost estimate that easily took this section over the $50 million threshold. NHTSA has taken similar action in determining the cost estimate for the proposed regulatory charge in relying on data from a non-representative group of states to bring the estimate under $100 million. NCSL's estimates indicate that implementing 656 (b) and its corresponding regulations will place a substantial cost on state governments that will easily exceed the $50 million threshold set in UMRA. But there is yet more insult here. In preparing its regulations, NHTSA completely ignored its mandated responsibility to consult with elected state and local officials and their organizations when preparing the proposed regulations. Had they done so, we could have discussed cost estimate methodology and assumptions. I cannot help but reiterate that a bad section of law can only produce bad regulations, and in this specific instance, improper regulatory processes.

CONDUCT A STUDY, IF THERE IS A NEED.

The federal government can access various data as proof of identity, legal status or lawful presence in the United States. The Immigration and Naturalization Service alone has 26 different documents that prove lawful presence. Federalizing the state driver's license process and essentially requiring imprints of and/or verification of social security numbers seems like document overkill.

If there is a need to assess best practices states use to verify identity-related information in the driver's license issuance and production process, I urge you to direct the General Accounting Office to conduct a study.

If, on the other hand, the real issue driving this bad section of law is the need for a national identification card, then NCSL's suggestion is for both houses of Congress to call for a vote on such. I would not urge you to pass it for the very same reasons we in Connecticut do not collect social security numbers for use on driver's licenses.

FEDERALISM REVISITED

Less than two months ago, this subcommittee explored the topic of federalism and the issuance of a new executive order, E.O. 13083, on federalism and intergovernmental relations. NCSL's President, Representative Dan Blue, testified before you that day to ensure the reinstatement of Executive Orders 12612 (President Reagan) and 12875 (President Clinton). In the aftermath of that hearing, bipartisan legislation, H.R. 4422 was introduced on the House side proposing to codify E.O. 12612 and 12875. Somewhat similar legislation, S. 2422 was introduced on the Senate side. Executive Order 13083 was suspended indefinitely. NCSL thanks you Mr. Chairman, and members of the subcommittee, for giving federalism the kind of attention it deserves.

My point, however, is that section 656 (b), when placed beside any of the aforementioned executive orders or legislation, woefully fails the federalism test. Given that most of you have indicated support for one or more of these executive orders or bills, I suggest that you, therefore, have more than a foundation for urging passage of H.R. 4179 immediately.

Thank you for this opportunity to testify. I would be glad to respond to any questions that you may have.