CDR/Suthers: Passports No Good

First, birth certificates were no good in the eyes of state officials (other than the Department of Motor Vehicles) for confirming citizenship, even though they are the only evidence most Coloradans have confirming citizenship status.  Now, the Colorado Department of Revenue (CDR), which is required to obtain approve from State Attorney General John Suthers’ office before issuing new regulations, is refusing to accept passports as proof of citizenship when applying for a driver’s license.

“Our daughter is a legal citizen with a legal passport,” said [State Sen. Andy] McElhany, R-Colorado Springs. “There is no reason to believe a 15-year-old has a fake passport.”

But as of Sept. 6, U.S. passports, long believed to be a solid form of identification, are no longer being accepted without another document – such as a state-issued birth certificate or Social Security card – to get a driver’s license or state ID. . . .

Michael Cooke, executive director of the state’s Department of Revenue, which oversees the DMV, has changed the rules for Colorado IDs four times since the new anti-immigration law went into effect Aug. 1 to counter fake documents.

This is all patently ridiculous, of course.

The New Law

The law in question really isn’t all that hard to understand.  The pertinent parts of the law (emphasis added) say that:

Except as otherwise provided . . . or where exempted by federal law, on and after August 1, 2006, each agency or political subdivision of the state shall verify the lawful presence in the United States of each natural person eighteen years of age or older who applies for state or local public benefits or for federal public benefits for the applicant. . . . An agency or a political subdivision shall verify the lawful presence in the United States of each applicant eighteen years of age or older for federal public benefits or state or local public benefits by requiring the applicant to:
(a)  Produce:
(I)  A valid Colorado driver’s license or a Colorado identification card, issued pursuant to article 2 of title 42, C.R.S.; or
(II)  A United States military card or a military dependent’s identification card; or
(III)  A United States Coast Guard Merchant Mariner card; or
(IV)  A Native American tribal document; and
(b)  Execute an affidavit stating:
(I)  That he or she is a United States citizen or legal permanent resident; or
(II)  That he or she is otherwise lawfully present in the United States pursuant to federal law.

The new law didn’t change the requirements for getting a driver’s license or state ID at all.

The new law then created a provision which was intended to allow forms of ID other than the four types described above (such as birth certificates), in a transition period.

[T]he executive director of the department of revenue may issue emergency rules, to be effective until March 1, 2007, providing for additional forms of identification or a waiver process to ensure that an individual seeking benefits pursuant to this section proves lawful presence in the United States. The rules are necessary to ensure that certain individuals lawfully present in the United States receive authorized benefits, including but not limited to homeless state citizens. . . . all emergency rules authorized under this subsection . . . are repealed, effective March 1, 2007.

Redefining Citizenship

Despite the fact that the new law doesn’t call for changes in the driver’s license issuance rules at all, the Department of Revenue and Suthers’ office have taken upon themselves to declare that passports, the gold standard for determining citizenship and identity, are now insufficient:

Cooke said the federal government does not require the use of a person’s full legal name for the issuance of a passport. It also does not require “rigid proof” of identity or legal residency in the United States.

And, Cooke said, if an applicant can’t produce some form of ID, he or she can still get a passport if friends or family members take an oath that they’ve known the individual for at least two years and that he or she is a U.S. citizen.

Cooke’s answer doesn’t make sense even on its face.  Legal residents other than U.S. citizens can’t be issued U.S. passports at all, and every U.S. citizen is always a legal resident of the United States, by definition.  The issuance of a passport is definitive proof of citizenship, which can be overcome only through an elaborate federal administrative procedure.

Also, under Colorado law, under cases such as In re Knight, 36 Colo. App. 187, 537 P.2d 1085 (1975), a person can adopt another name at will, and formal legal name changes are merely optional.  So, if you put a name on a passport, it is your legal name.. 

And, a photograph on a passport affirming that someone is a U.S. citizen is a pretty rigid form of identication that the person in front of you is the same person to whom the passport was issued.  And, the presence of either a social security card, or a birth certificate, neither of which contains anything other than a name to link the person holding it to the document, obvious add nothing to the lack of proof of identity which Cooke complains is lacking in a Social Security card.

Yet, even though citizenship status is strictly a creature of federal law, the federal laws used to determine citizenship status are no longer good enough for Colorado.

The Real Problem

The Rocky correctly quotes State Senate President Joan Fitz-Gerald, D-Coal Creek Canyon, regarding the source of the problem:

Part of the problem is that Michael Cooke has made up her own laws.  She has not been given the power to go over and above what the bill intended.

A statement of legislative intent from someone involved in bringing the law into being a few months ago ought to be fairly persausive.  And, the law itself was clear enough.  Unless, you are dealing with the Colorado Department of Revenue and Colorado Attorney General John Suthers, for whom issuance of illegal regulations (as evidenced by the example of a recently enjoined election law regulation and improper voting machine certification) seems to be the norm.

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Andrew Oh-Willeke

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