Court Strikes Down Louisiana Crime Of Driving While Undocumented

Even as other states move toward making a it little bit easier for undocumented immigrants to drive, Louisiana law still makes it a felony to drive without documentation of lawful U.S. presence. But a Louisiana appellate court struck down the driving while undocumented law last week as unconstitutional, citing the U.S. Supreme Court’s 2012 ruling on federal preemption of state immigration law.

The court explains that the record does not provide “any factual basis for the police approaching Defendant, nor any basis which would establish probable cause for arresting Defendant.” In fact, the statute does not seem to even require the fundamental American standard of proof for arrests, the court explains in a unanimous ruling:

Louisiana Revised Statute 14:100.13 does not expressly require any probable cause for arrest, and when questioned in oral argument, the State‘s attorney could not, or would not, offer any response to this court‘s repeated encouragement that he offer one example of what might constitute probable cause for an arrest under La.R.S. 14:100.13. Moreover, La.R.S. 14:100.13 offers no definition of the terms “alien student” or “nonresident alien.” These terms have no real meaning under the federal immigration scheme and are not recognized in federal immigration provisions. Neither does the statute define what is meant by “lawfully present in the United States.” Indeed it is for the federal government to define “lawful presence” in the United States and it has done so through a complex and comprehensive scheme regulating immigration and naturalization. These unanswered questions in Louisiana‘s statute underscore the reason why the various states in the United States cannot be left to their own designs to “compliment” federal law or make additional or auxiliary requirements to federal immigration law. The United States Supreme Court in Arizona expressly recognized the unwelcome prospect of state laws such as La.R.S. 14:100.13 being used to unnecessarily harass college students from foreign countries attending our great universities.

The ruling is in conflict with another state appeals court, which upheld the law. But today’s ruling notes that decision was before the U.S. Supreme Court’s ruling, and would not stand in its wake. The court split makes it likely that the state Supreme Court will review the case.

Several states refuse to issue driver’s licenses to undocumented immigrants, which also causes safety and other problems, while others are instituting reform to explicitly allow undocumented individuals (although many of these laws issue different, distinct licenses to undocumented individuals). While the Louisiana statute was struck down as a violation of the Constitution’s supremacy clause, mirroring the U.S. Supreme Court’s 2012 immigration decision in SB 1070, the law also poses tremendous racial discrimination problems, and its implementation could likely be challenged as a violation of the Fourteenth Amendment’s equal protection clause, since police officers are pulling over individuals without any other legal basis for the stop other than visual cues that might suggest they are undocumented.