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by Kendra Sena*
While the federal government has exclusive authority to govern matters of immigration, state and local governments retain the right to enact laws that protect their residents, including undocumented immigrant residents. One strategy that a number of local governments across the country have adopted is to issue photo ID cards to their residents—regardless of immigration status.
Local governments generally enjoy broad authority to enact laws aimed at protecting the well-being of their residents. Cities and counties administer local programs, decide how to run their police forces, and make decisions about education and other services to their residents. Localities across the country have routinely used their authority to create and issue various identification documents, including employee IDs, parking or local-access permits, and, most recently, resident identification cards known as “municipal IDs.”
Municipal IDs do not take the place of state-issued IDs; they are not, for example, a substitute for a driver’s license or sufficient identification to board a plane. But in recent years, a number of cities and counties across the country have begun to issue municipal IDs to their residents in an effort to promote safety and integration of all members of the community, including some immigrants for whom state-issued IDs are out of reach.
Municipal IDs allow cardholders to access local services that may otherwise be foreclosed to them. For example, municipal IDs may be used to cash a check, rent an apartment, or participate in local civic life. Moreover, the IDs may be used as identity documents when interacting with local law enforcement, a function that has been credited with an increase in civilian reporting of crime and cooperation with law enforcement investigations.
But as more and more localities move to adopt municipal IDs, local governments face difficult decisions: how to protect themselves from potential challenges from the state or federal government, how to store identifying information of residents who apply for the IDs, how to protect that information from disclosure, and how to administer the program in a way that promotes safety and integration of resident cardholders.
This explainer will outline the various reasons a local government may choose to create a municipal ID and the mechanisms by which such a program may be adopted. It will then discuss how municipal IDs interact with state and federal law, and some of the privacy and other concerns that have arisen in localities across the country with municipal IDs.
I. Why do local governments issue municipal IDs?
A wide variety of public and private services require the user to present an ID. Government-issued IDs are often required to open a bank account or even cash a check, register a child for school, or rent an apartment from a private landlord. In each of the preceding examples, nothing in the law
requires a person to present a government-issued ID—in fact, in the case of registering a child for public school, requiring a photo ID from the parent is
illegal, and a number of school districts across the country have been sued for implementing photo ID requirements. Regardless of the legal basis for such requests, the reality is that people are asked for a photo ID at numerous points of sale and service throughout their daily lives.
But many people face barriers to obtaining IDs from their state governments. Often state IDs require original birth certificates, social security cards, and other documents that vulnerable populations may not have. For example, people experiencing homelessness, youth in the foster system, the low-income elderly, people with mental illness and disabilities, formerly incarcerated people, and survivors of domestic violence may not have a stable place to store the documents that state governments require for IDs. In many states, transgender people are blocked from changing their driver’s license to match their gender identity without a court order, amended birth certificate, or even proof of surgery.
Ineligibility for state-issued ID cards can have harsh consequences for many immigrants, particularly the undocumented. In most states across the country, undocumented immigrants are prohibited from obtaining driver’s licenses and state-issued IDs. Because many immigrants work in the cash economy and are unable to open bank accounts without government-issued IDs, they become vulnerable to theft. Lack of IDs may make undocumented immigrants uncomfortable reporting theft and other crimes to local police, making law enforcement less able to address serious crime in their communities.
Local governments may choose to fill this gap by developing a municipal ID program. Because local governments are free to make their own rules concerning their municipal ID programs, most require applicants to produce less documentation than they would have to produce for a state-issued ID. Whereas a state-issued ID might require proof of identity in the form of an original birth certificate, U.S. passport, or visa, a locality may choose to accept proof of identity in the form of a student or employee ID, foreign passport, or consular-issued document in order to apply for a municipal ID. While these efforts aim to make it easier for residents—including undocumented immigrants—to obtain a municipal ID, the IDs are available to all residents, regardless of immigration status.
While municipal IDs may serve a symbolic function—creating a sense of membership in the community and commitment to the integration of all residents into civic life—they do not, on their own, create new rights for undocumented immigrants and other cardholders. Instead, they facilitate access to municipal and other services for which cardholders are already eligible. Some IDs are linked directly to those services—the cards serve as library cards or bus passes, for example—while other IDs prove residency in order to access services, like entrance to city facilities or municipal buildings.
Because municipal IDs provide increased access to banking and other financial services, municipal ID programs may stimulate local economies. Studies show that immigrants are disproportionally “unbanked,” meaning they do not have checking or savings accounts and rely instead on “high-cost fringe providers” like check cashing stores and payday lenders. Access to a bank account allows consumers to earn interest on their savings and reduces the transaction costs of cashing a check or sending a money order, stimulating local spending and investment. And at least one city with a municipal ID program attributed a significant reduction in crime and an increase in crime reporting to the widespread use of the cards, particularly in the immigrant community.
II. Which parts of local governments create municipal IDs?
Over two dozen cities and counties in the US have enacted municipal ID laws, including six in New York: New York City began issuing its “IDNYC” in January 2015, and between the years of 2018-2019, six cities in New York, Hudson Valley passed local legislation to create a municipal ID program.
Most municipal ID programs are adopted by an action of the local legislative body and administered by a local agency. Though it is likely that mayors and county executives have the power to enact a municipal ID program through an executive order, such an enactment will be vulnerable to a rollback by a succeeding executive. An act of the local legislature can also codify certain important aspects of the program over which an administering agency may not have authority, such as the requirement that city officials accept the cards for all purposes.
There are a handful of municipal ID programs that operate differently. For example, the Mercer County, NJ, municipal ID is administered by a local nonprofit, and the Oakland, CA, municipal ID is administered by a private corporation. A community-based organization in Kingston, NY, issued a community ID without local authority.
III. How do municipal IDs interact with state and federal law?
State laws. Within any state, state and local governments share responsibility for governing the lives of their residents. Typically, municipalities have the broadest authority in matters of local interest. In many states, including New York, this power derives from the principle of “home rule,” an explicit grant of authority from the state to the municipalities to govern themselves. Home rule gives local governments the freedom to experiment with local policy, especially regarding “municipal issues.” In New York, home rule is enshrined in the state constitution and further enumerated by statute.
Even in home-rule states, however, states may limit local power. Where an issue involves a matter of “substantial state interest,” the state can preempt the local government’s ability to adopt local laws. In New York, there is no state law that preempts municipal IDs. In fact, enacting identity documents is one of the many enumerated rights in a state statute governing cities.
Federal laws. There is no federal law prohibiting a municipality from issuing its own identification cards. However, a locality that is considering a municipal ID program should be aware of a number of limitations based on federal law.
Preemption. The federal government has exclusive authority over national immigration law and policy, and no state or locality may enact any law that attempts to regulate immigration. The federal government is said to “occupy the field” of immigration and, as such, attempts by state or local governments to regulate immigration are “field preempted” by federal law.
Despite this broad field preemption, the only court to consider the issue made quick work of a challenge to a municipal ID program on federal preemption grounds. In 2008, the Immigration Reform Law Institute, a group that advocates for stricter immigration laws, sued the City of San Francisco claiming that its municipal ID program violated federal immigration laws. The group argued that because the city issued cards to undocumented people, the program encouraged illegal immigration. The judge upheld the city’s argument that the claim was “purely speculative,” and that because the cards were available to all residents, “immigration status is not considered at all under the Ordinance,” and thus not preempted by federal immigration law.
 The case is instructive; it demonstrates that even those programs that allow undocumented immigrants to receive municipal IDs are not preempted by federal immigration law as long as they are made available to all residents, regardless of immigration status.
USA PATRIOT ACT. The USA PATRIOT Act is a comprehensive law enacted in the wake of 9/11 aimed at strengthening the security of the United States. Among a great many other provisions, the PATRIOT Act requires financial institutions such as banks and credit unions to verify the identities of those seeking to access financial services. The law permits each financial institution to determine which documents it will accept for those purposes. While many banks have implemented a requirement that a customer present a state-issued ID in order to access financial services, there is no federal regulation mandating such a strict requirement. Thus, financial institutions are free to accept municipal IDs as valid identity documents, and they do not run afoul of federal law when they do so. In fact, the National Federation of Credit Unions has encouraged its members to accept municipal IDs where available. Thirteen banks and credit unions in New York accept New York City’s IDNYC.
PRWORA. The federal Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 provides limits on the extension of federal, state, and local benefits to unlawfully present noncitizens. The statute defines the benefits that it restricts, including certain retirement, welfare, and postsecondary education assistance. A municipality cannot override this federal law; conflicting state or local laws are said to be “conflict preempted.” This means that a person issued a municipal ID would still be limited by the PRWORA and other applicable laws; the card cannot extend benefits to otherwise ineligible people. But because
the card itself is not considered a benefit, municipal IDs do not conflict with the law.
REAL ID. Although federal law allows localities to issue municipal IDs, those IDs are not compliant with the federal REAL ID Act. This means that while municipal IDs are valid for whatever local use the municipality deems appropriate, the IDs will not be accepted as valid identity documents for federal purposes.
The REAL ID Act sets out certain requirements for identity documents to be accepted for federal purposes, including barring undocumented immigrants from obtaining REAL ID-compliant identification. But federal law does not prohibit states or localities from issuing IDs that do not comply with REAL ID. To the contrary, the Act includes a description of the requirements for
noncompliant IDs too, anticipating that other state-issued IDs will coexist with REAL ID-compliant identity documents.
Many states, including New York, are rolling out new state-issued licenses that comply with REAL ID but also continuing to issue non-compliant licenses. Non-REAL ID-compliant state-issued licenses may be used for whatever purpose the state determines (such as driving or registering to vote), but, as with municipal IDs, will not be accepted for federal purposes (such as entry into a federal building, military base, or for domestic or international travel).
The limitations of non-REAL ID-compliant IDs may have serious consequences for undocumented cardholders. In two separate incidences in 2018, three New York City residents were detained by federal immigration authorities after showing their IDNYC cards to enter military bases in New York. It is therefore imperative that a local government that adopts a municipal ID program makes it clear that the IDs are not to be used for federal identification purposes.
IV. Privacy Concerns
Municipal IDs are made available to all residents of a municipality, not just undocumented immigrants. However, because undocumented immigrants have a pronounced need for such government-issued IDs, there is some concern that municipal IDs may serve to stigmatize the cardholder or create a registry of undocumented immigrants. Municipalities that share these concerns have implemented a number of measures to encourage all residents to apply for and carry the card. For example, an IDNYC card entitles the bearer to free membership to the Metropolitan Museum of Art, the Bronx Zoo, the Museum of Natural History, and other cultural attractions. In New Haven, CT, the city recruited local businesses to offer discounts to municipal ID holders, encouraging wide participation and stimulating local spending. Some states have also codified a prohibition on discrimination against people who present non-REAL ID-compliant IDs.
Additionally, almost all municipal ID card programs across the country prohibit the copying or retention of personal documents used to apply for the cards, which for some people includes foreign birth certificates or passports. Applicants for these IDs need only
show their documentation to obtain an ID, rather than provide copies of it for the municipality to keep.
One very prominent exception was New York City, which until recently retained copies of applicants’ personal documents in a city database. In 2016, two New York State Assembly members filed a Freedom of Information Law (FOIL) request with the city for any scanned information regarding IDNYC. The city declined the request, stating that the information was subject to various FOIL exemptions, including protections against the disclosure of personal information, information reported in confidence, information that would intrude upon personal privacy, and information that would endanger the subject. The City then amended its protocol so that it would no longer maintain copies of such documents, and announced that it would destroy the personal documents it had collected up to that point. The Assembly members sued the city to block its plan to destroy the documents, arguing that destroying the records would threaten national security and that the data should be preserved and made accessible under the state’s FOIL law. The judge in the case held that the Assembly members lacked standing as they had demonstrated no injury; a general grievance on behalf of society was insufficient.
 He further held that FOIL allows disclosure of information and a promise of access, but does not mandate retention of these documents. The court permitted the city to destroy the documents as planned. But the suit highlighted the risk that municipalities attempting to help noncitizens by issuing them municipal IDs may in fact increase their exposure if personal information is not handled in a way consistent with the program’s goals.
Although municipalities generally do not retain ID-holders’ personal documents, they do typically keep track of cardholders in electronic databases. No federal law requires municipalities to collect or retain specific information or to grant federal access to municipal databases. And it does not seem that federal authorities have access to municipal databases through their standard automated networks used for law enforcement purposes. Many municipalities have codified protections against disclosure of identifying information, and clarified which information will be treated as confidential under the federal and state freedom-of-information laws.
For example, the New York City law that created that city’s ID program included language that requires a subpoena or judicial warrant for law enforcement to access the data. Additionally, the city issued a number of executive orders to heighten the security measures for handling confidential information, including the new provision for refraining from retaining the personal documents of applicants.
In Connecticut, the state’s Freedom of Information Commission denied a request by private citizens to release the names, addresses, and phone numbers of municipal ID card holders, claiming that the program violated federal law by aiding illegal immigration. The Commission found that the New Haven ID card program does not constitute a local attempt at immigration regulation because card applicants were not asked about their immigration or citizenship status at all. Citing credible threats of violence against city officials and undocumented immigrants who carry the card, the Commission ruled that New Haven officials could keep secret the identity of cardholders under the public-safety-risk exemption in the freedom of information law. At present these cases are rare, but they highlight the risks involved if municipalities develop ID programs without a careful eye toward confidentiality.
Federal law serves as a constraint on local governments’ ability to make immigration policy, but also provides some freedom to make decisions that directly affect the daily lives of immigrants within their communities. Municipal IDs are meant to bring all residents into the civic fold—facilitating access to municipal and other services, stimulating local economies, and creating trust between residents and law enforcement. While it is clear that municipal governments have an inherent right to create such programs, there are still questions about the degree to which local governments can protect the private information of their residents who apply for the cards. Local governments must confront difficult questions regarding document storage and privacy, and strike a balance between the vulnerabilities the cards are meant to correct, and the ones they may inadvertently create.
The Equal Protection Clause generally requires that state and local governments treat citizens and noncitizens equally. This means that if a locality issues a municipal ID for its citizen residents, it must also make the ID available to its noncitizen residents. For more on the requirements of Equal Protection, see the Government Law Center’s publication, “Immigrants and Public Benefits: What Must States and Localities Provide? (And When Do They Have a Choice?)”
For a useful guide to implementing a municipal ID program, including costs, timeline, and model legislation, see:
The Department of Homeland Security has posted answers to a number of frequently asked questions about the REAL ID Act, available at:
*Kendra Sena is the Senior Staff Attorney at the Government Law Center at Albany Law School. Research assistance by Olivia Fleming, Brendan Nashelsky, and Michele Monforte.
See Thomas MacMillan, “Elm City ID Card Turns 5,” New Haven Independent (Jul. 23, 2012),
 Federal law requires financial institutions to verify the identities of those seeking to access financial services. 31 C.F.R. § 1020.220. Each institution sets its own rules for which forms of identification it will accept, and most require a government-issued ID.
See, Anna Paulson et al., “Financial Access for Immigrants: Lessons from Diverse Perspectives” (The Federal Reserve Bank of Chicago & The Brookings Institution, May 2006),
 The U.S. Department of Justice has explained that requiring a parent to present a photo ID to enroll a child in school is unconstitutional. U.S. Dep’t of Justice, Civil Rights Division, “Information on the Rights of All Children to Enroll in School: Questions and Answers for States, School Districts and Parents,” (May 18, 2014),
https://www.justice.gov/sites/default/files/crt/legacy/2014/05/08/plylerqa.pdf (stating that “while a district may choose to include a parent’s state-issued identification or driver’s license among the documents that can be used to establish residency, a school district may not
require such documentation to establish residency or for other purposes where such a requirement would unlawfully bar a student whose parents are undocumented from enrolling in school”) (emphasis in original). Still, districts across the country routinely list parent photo ID as required documentation to enroll a child in school. For a recent example of the many lawsuits against such school districts, see Hannan Adley, “ACLU-NJ Sues 12 School Districts, Alleging Discrimination Against Undocumented Students,” North Jersey (Jul. 26, 2018),
 For a state-by-state guide to the rules governing name and gender changes on federal and state IDs, see the National Center for Transgender Equality’s ID Documents Center at: https://transequality.org/documents.
 The National Conference of State Legislatures maintains a list of state laws that permit undocumented immigrants to access driver’s licenses. See,
http://www.ncsl.org/research/immigration/states-offering-driver-s-licenses-to-immigrants.aspx. The June 2019, New York becamme the latest state to approve a law extending driver licenses to qualified residents regardless of immigration status. See Vivian Wang, Driver's Licenses for the Undocumented Are Approved in Win for Progressives, The New York TImes, June, 17, 2019. http://www.nytimes.com/2019/06/17/nyregion/undocumented-immigrants-drivers-licenses-ny.html
 Laura Sullivan, “Police, Banks Help Undocumented Workers Shake 'Walking ATM' Label,” Morning Edition, NPR, (Jan. 20, 2014) (describing the high incidence of robbery victimization among immigrants who are more likely to work in the cash economy and less likely to use banks).
 Caitlin Gokey & Susan Shah, How to Serve Diverse Communities,
in Police Perspectives: Building Trust in a Diverse Nation (U.S. Dep’t of Justice, Office of Cmty. Oriented Policing Servs. & Vera Institute 2016),
 Els de Graauw,
Municipal ID Cards for Undocumented Immigrants: Local Bureaucratic Membership in a Federal System, 42(3) Politics & Society 309, 314 (2014).
 Stella Burch Elias,
Immigrant Covering, 58 Wm. & Mary L. Rev. 765, 841 (2017).
 National Federation of Community Development Credit Unions, A Toolkit for Credit Unions Serving Immigrants: Best Practices for Providing Access, Lending and Integration Through Partnerships to Underserved Communities, (Dec. 2015),
 For a robust discussion of the effects of banking the unbanked around the world, see, e.g., Asli Demirguc-Kunt et. al.,
The Global Findex Database 2017: Measuring Financial Inclusion and the Fintech Revolution (World Bank Group 2018), http://documents.worldbank.org/curated/en/332881525873182837/The-Global-Findex-Database-2017-Measuring-Financial-Inclusion-and-the-Fintech-Revolution.
 Five years after the implementation of the city’s municipal ID program, the Police Chief of New Haven, CT, the first city to adopt a municipal ID, reported an
increase in the crimes reported and a 20%
decrease in crime committed over the first two years after implementing the program. MacMillan, supra note 1.
 They include: New Haven, CT, Chicago, IL, Oakland, CA, San Francisco, CA, Johnson County, IA, Mercer County, NJ, among others.
 Matt Flegenheimer, “New York City to Formally Start Its Municipal ID Card Program,” N. Y. Times (Jan. 11, 2015),
 Lana Bellamy, Municipal ID Cards Gain Ground in New York, Hudson Valley, The Times Herald Record, Apr. 10, 2019, https://www.govtech.com/civic/Municipal-ID-Cards-Gain-Ground-in-New-Yorks-Hudson-Valley.html.
 The Center for Popular Democracy, Building Identity (Nov. 2015),
 The Worker Justice Center of New York issues a photo ID card to residents and workers in Kingston, NY. The card was a response to a failed municipal ID initiative.
See Rick Su,
Have Cities Abandoned Home Rule? 44 Fordham Urb. L. J. 181 (2017), https://ir.lawnet.fordham.edu/ulj/vol44/iss1/6.
See, N.Y. Const. art. IX, § 2 and N.Y. Municipal Home Rule Law § 10 (McKinney 2011).
 For a discussion of recent trends in state preemption,
see, National League of Cities, City Rights in an Era of Preemption: A State-by-State Analysis: 2018 Update (Feb. 2018),
 N.Y. Gen. City § 20 ¶14,
Grant of Specific Powers (McKinney 2011) (stating that every city is empowered to “create, maintain and administer a system or systems for the enumeration, identification and registration, or either, of the inhabitants of the city and visitors thereto, or such classes thereof as may be deemed advisable).
Arizona v. United States, 567 U.S. 387, 401 (2012) (noting that the federal government has occupied the field of alien registration, and that even complementary state regulation is impermissible).
Langfeld et al. v. City and County of San Francisco et al., Super. Ct. S.F. City and County (No. CPF-08-508341) (2008),.
 Mem. of P. & A. in Supp. of Resp’t Dem. to Pet. for Peremptory Writ of Mandamus and Compl. for Decl. and Inj. Relief,
Langfield et. al., supra note 26, No. 08-508341, (August 29, 2007).
Customer identification programs for banks, savings associations, credit unions, and certain non-Federally regulated banks, 31 C.F.R. § 1020.220.,
 Department of the Treasury, Fact Sheet: Results of the Notice of Inquiry on Final Regulations Implementing Customer Identity Verification Requirements under Section 326 of the USA PATRIOT Act (2003), http://
 Center for American Progress, Providing Identification to Unauthorized Immigrants: The State and Local Landscape of Identification for Unauthorized Immigrants (Nov. 2016), https://cdn.americanprogress.org/wp-content/uploads/2015/11/23122616/ProvidingIDs1.pdf.
 National Federation of Community Development Credit Unions,
supra note 10.
 Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193 Stat. 110 Stat. 2105 (August 22, 1996).
Id. See also, 8 U.S.C § 1621 (enumerating the benefits for which unauthorized immigrants are not eligible).
Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000).
 Kate M. Manuel & Michal John Garcia, Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues, (Cong. Research Serv. 20-21 2014),
 Building Identity,
supra note 17.
 REAL ID Act of 2005 Pub. L. No. 109-13 Stat. 119 Stat. 302 (May 11, 2008).
Id. at § 202(d)(11) (requiring that state-issued IDs that do not comply with REAL ID bear certain markings).
 For a list of the several IDs that New York issues, including REAL ID-compliant and non-REAL ID-compliant, see: N.Y. Dept. of Motor Vehicles, Federal REAL ID: What REAL ID Means to You, https://dmv.ny.gov/driver-license/federal-real-id.
 Zoe Greenberg, “The IDs Were Meant to Protect Immigrants. Are They a Liability?,” N. Y. Times (Jul. 10, 2018),
 Center for Popular Democracy, Who We Are: Municipal ID cards as a local strategy to promote belonging and shared community identity (Dec. 2013),http://populardemocracy.org/sites/default/files/municipal%20id%20report.pdf.
 Cities for Action, Municipal Program ID Program Toolkit (2015),
 Iván Espinoza-Madrigal, “Municipal ID Cards: Social Inclusion and Economic Benefits,” Huffington Post (Feb. 24, 2014),
 Center for American Progress,
supra note 30.
 City of New York, Human Resources Administration, “Retention of Copies of Records Provided By New York City Identity Card (IDNYC) Program Applicants to Prove Identity and Residency,” HRA Executive Order No. E-739, (December 7, 2016),
 Liz Robbins, “New York City Should Keep ID Data for Now, Judge Rules,” N. Y. Times (Dec. 21, 2016),
Castorina v. De Blasio, 55 N.Y.S.3d 599, 615 (N.Y. Sup. Ct. 2017).
 Federal immigration authorities can use an automated, state-owned network called Nlets to obtain certain information from state driver’s license registries, but municipal databases are not part of that network. For a robust discussion of Nlets and other information-sharing mechanisms used by federal immigration authorities, see National Immigration Law Center, Untangling the Immigration Enforcement Web (Sept. 2017),
 Rules of The City Of N.Y., ch. 6, § 6-11(d) (2017).
See, City of New York, Human Resources Administration, “Retention of Copies of Records Provided By New York City Identity Card (IDNYC) Program Applicants to Prove Identity and Residency,”
supra note 46; City of New York, Human Resources Administration, “Handling Of Third Party Requests for New York City Identity Card (IDNYC) Applicant and Cardholder Information,” (Dec. 1, 2014); City of New York, Human Resources Administration, “New York City Identity Card (IDNYC) Program Database Security,” (Dec. 1, 2014),
 Patrick Lee, “State agency to come to aid of city ID program,” Yale Daily News (Mar. 6, 2008), https://yaledailynews.com/blog/2008/03/06/state-agency-to-come-to-aid-of-city-id-program/.