ANNAPOLIS, Md. (April 13, 2021) – Yesterday, the Maryland House gave final approval to a bill that would prohibit state and local agencies from disclosing information in the state’s driver license and law enforcement databases to the feds for the purpose of immigration enforcement without a warrant.
Del. Dana Stein (D) introduced House Bill 23 (HB23) on Jan. 13. Under the proposed law, the Maryland Motor Vehicle Administration (MVA) would be prohibited from disclosing personal information in its databases to a federal agent or federal agency for the purpose of federal immigration enforcement without a warrant issued by a federal or state court. The legislation would also prohibit any state agency, political subdivision, or state contractor from disclosing personal information or photographs of an individual to a federal agent or agency for immigration enforcement without a search warrant. This would effectively end warrantless facial recognition searches of the state’s driver license database by ICE.
HB23 would also prohibit federal access to any state or local law enforcement database for the purpose of federal immigration law enforcement without a warrant.
In 2013, Maryland created a “second-tier” driver’s license for undocumented residents. According to news reports, about 40,000 undocumented Maryland residents got these provisional licenses. Since then, ICE has used the MVA database to locate and deport undocumented immigrants. Passage of HB23 would require ICE agents to get a warrant before accessing the MVA databases.
On March 22, HB23 passed the House 86-47. The Senate approved the measure with some technical amendments by a 32-14 vote. On April 12, the House concurred with the amendments, sending the bill to Gov. Larry Hogan’s desk for his consideration.
According to Maryland Matters, Stein said the bill wouldn’t stop ICE from doing its job. He said the proposed law simply seeks to prohibit the agency from using routine traffic stops and data collection for the express purpose of deporting undocumented immigrants.
“This bill does not change the rules,” he said. “It’s responding to bending the rules by ICE.”
In an op-ed, the Baltimore Sun called the ICE practice of using driver’s licenses to find and deport Maryland residents “morally unconscionable.”
“It defeats the purpose of the intent of the 2013 bill: to keep our roads safer”
Maryland’s ability to control its personnel and resources rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program.
The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US (1997) serves as the cornerstone. In it, Justice Scalia wrote for the majority:
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
Additionally, in the 1842 Prigg v. Pennsylvania case, the Court held that while the federal Fugitive Slave Act could not be physically impeded by states, they simply weren’t required to help the federal government capture runaway slaves and return them to bondage in the South.
Gov. Hogan will have 30 days from the date HB23 is transmitted to his office to sign or veto the bill. If he doesn’t act, the bill will become law without his signature.