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Friday, September 2, 2011

Another Victory for the Oligarchy of the Courts

“The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom.” — John Locke

In doing some research for this post I found a few differences of opinions on the issue of whether a driver’s license is a right or a privilege.

One side claims that the right to use the public highways is a constitutional right. This side cites various court decisions such as; the "RIGHT" to travel is a part of the liberty of which the Citizen "cannot be deprived" without due process of the law under the 5th Amendment. See: Kent v. Dulles, 357 U.S. 116, 125 and the "RIGHT" of the Citizen to travel upon the public roadways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a "COMMON RIGHT" which he has under the "RIGHT" to life, liberty, and the pursuit of happiness. See: Thompson v. Smith, supra.

In Thompson v Smith Justice Tolman of the Washington State Supreme Court said:

“Complete freedom of the highways is so old and well established a blessing that we have forgotten the days of the Robber Barons and toll roads, and yet, under an act like this, arbitrarily administered, the highways may be completely monopolized, if, through lack of interest, the people submit, then they may look to see the most sacred of their liberties taken from them one by one, by more or less rapid encroachment." Robertson vs. Department of Public Works, 180 Wash 133, 147.”

This concept is further amplified by the definition of personal liberty:

"Personal liberty largely consists of the Right of locomotion -- to go where and when one pleases -- only so far restrained as the Rights of others may make it necessary for the welfare of all other citizens. The Right of the Citizen to travel upon the public highways and to transport his property thereon, by horse drawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but the common Right which he has under his Right to life, liberty, and the pursuit of happiness. Under this Constitutional guarantee one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another's Rights, he will be protected, not only in his person, but in his safe conduct." II Am.Jur. (1st) Constitutional Law, Sect.329, p.1135.”

According to Justice Tolman “The Right of the Citizen to travel upon the public highways and to transport his property thereon, either by horse drawn carriage or by automobile, is not a mere privilege which a city can prohibit or permit at will, but a common Right which he has under the right to life, liberty, and the pursuit of happiness."

So we can see that a Citizen has a Right to travel upon the public highways by automobile and the Citizen cannot be rightfully deprived of his Liberty. So where does the misconception that the use of the public road is always and only a privilege come from?

On the other hand numerous courts have upheld the state’s right to control who uses the public highways through legislation and requirements for a driver’s license and proof of insurance to financially protect others from one’s actions.

DUI states:

“It is common misconception that any person in the United States has a right to drive. There is no such right in the US Constitution. Driving a motor vehicle is a privilege, and that privilege can be taken away or modified based on certain conduct, including several issues surrounding drunk driving cases. We all have a Constitutional right to life, liberty and the pursuit of happiness, but not to drive. Once a person accused of impaired driving understands this, it is much easier to understand why many of the procedural and constitutional safeguards do not apply in regards to driving a motor vehicle following a DWI or DUI arrest.

Despite the fact that driving is a privilege, it is one that can't be removed with some form of due process. Most often, that process comes in the form of an administrative hearing in front of a DMV administrative law judge.”

The focus of this post is not to enter into a debate over the right vs. privilege issue when it comes to driving a motor vehicle on a public highway. I use these examples merely to point out that there are two schools of thought on this issue.

Every state in the union requires a driver’s license to operate a motor vehicle on a public highway. They also require the following to obtain and keep the driver’s license:

  • A valid address for the applicant
  • Proof of age
  • A written and driving test
  • Proof of liability insurance
  • A photo on the license
  • A fingerprint on for the issuing agencies record
  • A waiver of rights to take a test for blood alcohol

In New Mexico Governor Susana Martinez got legislation passed to requireGovernor_NewMexico people in New Mexico to present proof of legal residency before they could obtain a driver’s license. But, as is the case today a district judge blocked Martinez’s plans to verify the driver’s licenses of 10,000 immigrants. According to the Washington Post:

“A New Mexico judge blocked Republican Gov. Susana Martinez’s administration Wednesday from requiring tens of thousands of immigrants to recertify their driver’s licenses and verify whether they continue to live in the state.

Martinez last month announced the residency verification plan, which represents the administration’s latest effort to focus attention on the state’s politically charged license policy, which the governor contends poses a security risk.

New Mexico is one of three states — the others are Washington and Utah — where an illegal immigrant can get a driver’s license because no proof of citizenship is required.

Under the residency verification plan, New Mexico sent notices to people that they must schedule an in-person appointment and bring documents, such as a utility bill or lease agreement, to prove they live in the state. The administration plans to cancel licenses of people who no longer are New Mexico residents.

Martinez wants the Legislature to repeal New Mexico’s license policy by requiring people to have a Social Security number, which is not available to someone living in the country illegally, to obtain a driver’s license. The governor’s proposal failed in the Legislature earlier this year but she’s renewing her push when lawmakers return to work next week in a special session.

District Court Judge Sarah Singleton on Wednesday issued an order temporarily halting the license residency verification program while it’s being challenged in court.

A lawsuit was filed last week by the Mexican American Legal Defense and Educational Fund against the administration’s plan to check a random sample of 10,000 license holders who are foreign nationals.

The lawsuit contends that the license certification program is illegal because it discriminates against one segment of the population — foreign nationals. The suit also contends the governor doesn’t have the power, without approval from the Legislature, to in effect require certain people to reapply for a driver’s license.”

Martinez, a former prosecutor who made a crackdown on illegal immigration the centerpiece of her election campaign, issued the requirement after a bill to ban licenses for illegal immigrants died in the state legislature earlier this year.

A number of U.S. states have passed laws to curb illegal immigration in recent years — there an estimated 11 million illegal immigrants in the United States — but have had key parts blocked by federal courts.

New Mexico is one of three states — with Utah and Washington — that allow illegal immigrants to obtain driver's licenses if they show proof of residency. Other states bordering Mexico — Arizona, California and Texas — do not.

Some officials fear the state's lenient driver's license rules were making New Mexico a magnet for illegal immigrants from out-of-state seeking licenses unavailable to them where they live. They say the measure would cut down on fraud.

According to report by Reuters:

“A spokesman for Governor Martinez said the restraining order was a "fairly standard" procedural step as the court examines the residency certification program.

"In the absence of the legislature acting to put an end to the program that provides driver's licenses to illegal immigrants, the governor has the responsibility to identify and attempt to curb the dangerous fraud and identity theft that is inherent in it," Scott Darnell told Reuters.

"The Governor continues to fight alongside the overwhelming majority of New Mexicans who feel that granting driver's licenses to illegal immigrants is a dangerous policy that has led to fraud and abuse as nonresidents are trafficked or travel to New Mexico for the sole purpose of getting a driver's license and leaving," he added.”

Wednesday was the last day of regularly scheduled appointments for residency certification. Any future appointments, according to the administration, would have been for people who had not yet complied or when the state lacked a forwarding address after the initial notice couldn’t be delivered.

Of the 10,000 letters sent out, more than 30 percent have been returned as undeliverable for some reason. This alone indicates that there is a great deal fraud going on in New Mexico.

This is another example where a state is trying to curb the effects of illegal immigration and is being thwarted by federal judges. It seems these low level district judges believe they have the power to determine how a state deals with their driver license fraud issue.

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