SAMPLE LETTER AND LEGAL ANALYSIS

Below please find a copy of a letter which will be sent to the Department of Transportation, National Highway Traffic Safety Administration, in objection to that agency's proposed driver's license rule. The proposed rule, if approved, will result in a requirement that all driver's license applicants must submit a social security number as a condition to obtaining their license. This particular letter raises several important legal objections to the proposed rule.

Everyone reading this message should send in a letter of their own. Letters do not have to be written in "legal" terms, nor do they need to be scholarly -- they just need to express sincerely felt objections whatever they may be. Comments should be focused and on point though. Keep in mind there is a 15 page limit, but additional supporting documentation may be added beyond this limit. The important thing is that we generate a LOT of letters of objection. Now is the time to object. The comment period only runs through August 2, 1998. So speak now or forever hold your peace.

This will be an interesting process. The government is required to consider all comments. Wouldn't you like for the DoT to consider yours? Incidentally, this is the same process we used in Alabama to defeat a proposed rule to require fingerprints on driver's licenses. Objections to the State's proposed rule ran so strong that the governor was forced to completely withdraw the proposal.

We'll have some additional sample letters soon, and many will be posted to the Fight the Fingerprint web page.

It will cost you a total 35¢ to participate in this effort. The cost of NOT objecting will be much greater.

Scott

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From the desk of Lowell H. Becraft, Jr.

June 22, 1998

Docket Management, Room PL-401 National Highway Traffic Safety Administration Nassif Building 400 Seventh Street, S.W. Washington, D.C. 20590

Re: Docket No. NHTSA-98-3945 DOCID:fr17jn98-28 23 CFR Part 1331: Proposed Rule - State-Issued Driver's Licenses and Comparable Identification Documents

Dear Sirs,

In the Federal Register of June 17, 1998 (Volume 63, Number 116, pages 33219 through 33225), your agency proposed certain regulations pursuant to the Omnibus Consolidated Appropriations Act of 1997, P.L. 104-208, 110 Stat. 3009, and specifically §656 thereof, 110 Stat. 3009-716, which will be codified in 23 C.F.R. Part 1331; further, comments from the public were invited regarding these proposed regulations. My suggestions for modification of your proposed regulations are as follows:

I. Summary of the rules and nature of my objections.

Under 5 U.S.C., §301, the President is authorized to issue executive orders for the government of executive agencies and §656 is clearly just simply a statute which applies only to executive agencies in a similar fashion. Via §656, Congress is now requiring executive agencies to standardize the types of documents which will be used as proof of someone's identity, and the purpose of such standardization is to assist the effort to stop illegal immigration. Stopping the invasion of illegal aliens is very important and it is obvious that proper proof of identity for an alien is essential to assist in this effort. However to solve this problem with illegal immigration, your agency proposes these new regulations which apparently will apply not only to aliens, but also domestic citizens. Under the proposed regulations, state issued documents like driver's licenses must contain the driver's social security number ("SSN") before those licenses can be used as means of identity by federal agencies. Consequently and as a direct result of these rules, the various states of our country will require the provision of SSNs just to obtain a driver's license and will limit the issuance of driver's licenses to those who have SSNs.

The requirement to provide a SSN for a driver's license will curtail and abridge my constitutional rights. I, as every other American, have a constitutional right to travel and the State of Alabama acknowledges this right to travel and does not currently abridge this right unreasonably. However, your proposed rules arbitrarily limit the right to obtain a driver's license to those with a SSN, which distinction is capricious as possession of a SSN has nothing to do with the ability to safely drive a car. But further, most Americans are not required to have a SSN and, in fact, most Americans are ineligible to receive a SSN. Your agency's rules will in effect prevent many Americans from exercising their right to travel. To avoid this unjust result, the proposed rules need to be limited solely to aliens, or new rules should be proposed which provide alternative means of identification for American citizens.

A. First Objection: The constitutional problem and the purpose of the Illegal Immigration Reform and Immigrant Responsibility Act.

Section 1331.6 of the proposed regulations plainly demands that all states obtain SSNs from "every applicant for a license or document" and further requires that every state confirm the issuance of the SSN to the applicant with the Social Security Administration ("SSA"). But under the U.S. Constitution, Congress simply does not possess the power to regulate the issuance of driver's licenses by the states of this Union, nor may Congress dictate to the states how to issue driver's licenses; see Printz and Mack v. United States, ___ U.S. ___, 117 S.Ct. 2365 (1997). This inherent limitation of congressional powers needs to be recognized in the proposed regulatory scheme, especially since the effect of such proposed rules will be the abridgment of constitutional rights of citizens. A way to address this constitutional problem is to just simply compel federal agencies rather than the states to verify that some applicant has been assigned a particular SSN. In fact, if assurance that a particular individual has been assigned a specific number by the SSA is an important means of identification, it makes more sense to require federal agencies to contact the SSA to verify a SSN than compelling the states to do so. This constitutional problem may be easily avoided simply by changing the party responsible for verification of SSNs with the SSA.

However, Congress does admittedly have control over immigration via Art. 1, §8, cl. 4 and Art. 1, §9 cl. 1 of the U.S. Constitution, and this new immigration act of which §656 is a part is clearly adopted pursuant to these constitutional provisions and the subject matter of the act clearly falls within the scope of Title 8, United States Code. Since this act applies solely to aliens and not domestic American citizens, your proposed regulations requiring items of identification such as driver's licenses should be limited to aliens. Section 1331.6 can be changed so that aliens are the parties who are required to obtain SSNs for driver's licenses.

B. Second Objection: Abridgment of right to travel.

I have a constitutional right to work for a living; see State v. Polakow's Realty Experts, Inc., 243 Ala. 441, 10 So.2d 461, 462 (1942). But beyond this constitutional right, I further have the constitutional right to travel which is protected by the United States Constitution; see Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 49 (1868)("We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own states"); Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113 (1958)("The right to travel is a part of the ‘liberty' of which the citizen cannot be deprived without the due process of law under the Fifth Amendment"); Shapiro v. Thompson, 394 U.S. 618, 629, 89 S.Ct. 1322 (1969) ("This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement"); and Dunn v. Blumstein, 405 U.S. 330, 339, 92 S.Ct. 995 (1972)("[S]ince the right to travel was a constitutionally protected right [1], ‘any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional'"). See also Schachtman v. Dulles, 225 F.2d 938,941 (D.C.Cir. 1955)("The right to travel, to go from place to place as the means of transportation permit, is a natural right subject to the rights of others and to reasonable regulation under law"); Bergman v. United States, 565 F.Supp. 1353, 1397 (W.D. Mich. 1983)("The right to travel is a basic, fundamental right under the Constitution, its origins premised upon a variety of constitutional provisions"); and Lee v. China Airlines, Ltd., 669 F.Supp. 979, 982 (C.D.Cal. 1987)("[T]he right to travel interstate is fundamental").

This right to travel is also a constitutional right under our Alabama constitution, embodied within the "liberty" provision of Art. I, §1; see Joseph v. Randolph, 71 Ala. 499, 504-05 (1882)("There can be no denial of the general proposition that every citizen of the United States, and every citizen of each State of the Union, as an attribute of personal liberty, has the right, ordinarily, of free transit from, or through the territory of any State. This freedom of egress or ingress is guaranteed to all by the clearest implications of the Federal, as well as of the State constitution"). This constitutional right to travel is widely recognized; see Florida Motor Lines, Inc. v. Ward, 102 Fla. 1105, 137 So. 163, 167 (Fla. 1931)("The right of a citizen to use the highways, including the streets of the city or town, for travel and to transport his goods, is an inherent right which cannot be taken from him, but it is subject to reasonable regulation in the interest of the public good"); Chicago Motor Coach Co. v. City of Chicago, 337 Ill. 200, 169 N.E. 22, 25 (1929) ("Even the Legislature has no power to deny a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience"); Swift v. City of Topeka, 43 Kan. 671, 23 P. 1075, 1076 (1890)("This right of the people to the use of the public streets of a city is so well established and so universally recognized in this country that it has become a part of the alphabet of fundamental rights of the citizen"); Teche Lines, Inc. v. Danforth, 195 Miss. 226, 12 So.2d 784, 787 (Miss. 1943)("The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety.... The rights aforesaid, being fundamental, are constitutional rights, and while the exercise thereof may be reasonably regulated by legislative act in pursuance of the police power of the State, and although those powers are broad, they do not rise above those privileges which are imbedded in the constitutional structure"); State v. Johnson, 75 Mon. 240, 243 P. 1073, 1078 (1926)("[W]hile a citizen has the right to travel upon the public highways and to transport his property thereon, that right does not extend to the use of the highways, either in whole or in part, as a place of business for private gain. For the latter purpose no person has a vested right in the use of the highways of the state, but is a privilege or license which the Legislature may grant or withhold in its discretion"); Cummins v. Jones, 79 Or. 276, 155 P. 171, 172 (1916); Berberian v. Lussier, 87 R.I. 226, 139 A.2d 869, 872 (1958); Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 583 1930)("The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety... It is not a mere privilege..."); Hadfield v. Lundin, 98 Wash. 657, 168 P. 516, 518 (1917)("They all recognize the fundamental distinction between the ordinary right of a citizen to use the streets in the usual way and the use of the streets as a place of business or main instrumentality of a business for private gain. The former is a common right, the latter an extraordinary use"); and Ex parte Dickey, 76 W.Va. 576, 85 S.E. 781, 782 (1915)("The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of the one who makes the highway his place of business and uses it for private gain... The former is the usual and ordinary right of a citizen, a common right, a right common to all, while the latter is special, unusual, and extraordinary. As to the former, the extent of legislative power is that of regulation; but, as to the latter, its power is broader").

This right to travel is regulated by Alabama and all of the other states, and this is a power possessed by the states of this Union and not Congress. Naturally, the states are in the best position to determine the qualifications of a driver and the states obviously understand that the mere possession of a SSN has nothing to do with the ability to drive a car. However, your agency now in essence dictates a new and arbitrary qualification for driver's licenses, which is possession of a SSN. Your agency does not, under the Printz decision, have such authority to dictate to the states in this fashion. But furthermore, your requirement that all drivers have SSNs constitutes a new condition precedent to obtaining a driver's license, yet possession of a SSN has no bearing upon the ability to drive a car. This requirement thus is an unconstitutional abridgement of my right to travel. The new rules should be amended so as to eliminate the SSN requirement for driver's licenses issued to domestic Americans like me.

C. Third Objection: Domestic citizens are not required to have SSNs.

Most people erroneously believe that every American is required to have a SSN and apparently those who drafted the proposed regulations think accordingly. As proof of this erroneous belief, please examine the attached letter from the SSA written to a friend of mine, Scott McDonald, which acknowledges this fact as follows:

"The Social Security Act does not require a person to have a Social Security number (SSN) to live and work in the United States, nor does it require an SSN simply for the purpose of having one."

The only statute which authorizes the issuance of SSNs to classes of individuals is 42 U.S.C. §405, which provides:

(B)(i) In carrying out the Commissioner's duties under subparagraph (A) and subparagraph (F), the Commissioner of Social Security shall take affirmative measures to assure that social security account numbers will, to the maximum extent practicable, be assigned to all members of appropriate groups or categories of individuals by assigning such numbers (or ascertaining that such numbers have already been assigned):

(I) to aliens at the time of their lawful admission to the United States either for permanent residence or under other authority of law permitting them to engage in employment in the United States and to other aliens at such time as their status is so changed as to make it lawful for them to engage in such employment;

(II) to any individual who is an applicant for or recipient of benefits under any program financed in whole or in part from Federal funds including any child on whose behalf such benefits are claimed by another person; and

(III) to any other individual when it appears that he could have been but was not assigned an account number under the provisions of subclauses (I) or (II) but only after such investigation as is necessary to establish to the satisfaction of the Commissioner of Social Security, the identity of such individual, the fact that an account number has not already been assigned to such individual, and the fact that such individual is a citizen or a noncitizen who is not, because of his alien status, prohibited from engaging in employment; and, in carrying out such duties, the Commissioner of Social Security is authorized to take affirmative measures to assure the issuance of social security numbers:

(IV) to or on behalf of children who are below school age at the request of their parents or guardians; and

(V) to children of school age at the time of their first enrollment in school.

As you can see, domestic Americans not seeking social security benefits simply are not within the class of individuals who may lawfully obtain SSNs. Certainly I am not in these classes because I am not an alien, I do not collect and do not want to collect social security benefits (the system is bankrupt anyway), and I am obviously not a child.

In our legal system, members of the American public are charged with knowledge of the limits of the statutory authority of government agencies and employees; see Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1 (1947). Government agencies are bound by and must follow the limits upon their authority established by law; see United States v. Spain, 825 F.2d 1426 (10th Cir. 1987); and Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316, 322, 81 S.Ct. 1611 (1961). Currently, the SSA lacks the authority to issue SSNs to individuals outside the classes described in the above §405. Further, pursuant to 18 U.S.C., §1001, it is a crime for anyone to submit false information to a government agency. The effect of your agency's proposed rules will force people who are not entitled to get a SSN to commit the crime proscribed by §1001.

But furthermore, considering that SSNs may lawfully be assigned to only a very small portion of the populace of America, your agency is obviously attempting to exclude many from the class of drivers. As shown above, American citizens have a constitutional right to travel which may not be arbitrarily and capriciously abridged. To drive a car, one only needs a knowledge of the rules of the road, the visual senses of sight and hearing, and the skill to pilot a car. Any conditions other than these constitute abridgements of this constitutional right. Your agency lacks all power to limit the issuance of driver's licenses to aliens, social security recipients and school age children. And making a distinction between those who have SSNs and those who do not for driving purposes is an illegal and invidious discrimination; see Miller v. Carter, 547 F.2d 1314 (7th Cir. 1977).

II. Suggested changes to rules.

I have read some of the documents and reports published by the American Association of Motor Vehicle Administrators and am convinced that this organization has an objective of creating some national identification card to which I am strenuously opposed. I am further convinced that this organization from whom you are statutorily required to seek advice is using your agency to accomplish this purpose. In its unbridled quest, I don't doubt that this organization has completely overlooked some of the serious problems which will arise if its accomplishes its goal: establishment of a national ID card will curtail the liberties and freedoms of the American people.

To insure that constitutional liberties are protected by your agency's proposed rulemaking, I offer the following suggested amendments to these rules:

1. Completely redraft these rules and only require federal agencies (not the states) to obtain SSNs from applicants and have these agencies verify with the SSA the assignment of SSNs to the various applicants;

2. If it is essential to incorporate state driver's licensing agencies into this regulatory scheme, then require only aliens to provide SSNs to obtain driver's licenses.

3. If identification of American citizens is essential to control the problem of illegal immigration, provide some other method to identify Americans rather than through this driver's license scheme which violates constitutional rights.

I wish to be informed of any proposed amendments to these rules or their adoption.

Sincerely,

Lowell H. Becraft, Jr.

cc: Mr. William Holden, Chief, Driver Register and Traffic Records Division, NTS-32, NHTSA 400 Seventh Street, S.W. Washington, D.C. 20590

Footnote:

1. The Court in Dunn also declared that the "The right to travel is an ‘unconditional personal right,' a right whose exercise may not be conditioned," Id., at 341.

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