Governor Cuomo Announces Filing of Lawsuit Against the Trump Administration

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Yesterday, Governor Andrew M. Cuomo announced that on the behalf of New York, Attorney General Letitia James has filed a lawsuit against the Trump Administration over a new federal policy that prohibits New Yorkers from enrolling or re-enrolling in the federal government's Trusted Traveler Programs. The suit, filed against the U.S. Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), and the two agencies' acting-leaders, argues that the policy change is arbitrary and poses a threat to New Yorkers' safety and the State's economy, directly harms hundreds of thousands of individual residents, and interferes with New York's rights as a sovereign state.

Despite the federal government's ability to gather the information they need from New Yorkers who wish to sign up for a Trusted Traveler Program, last week, President Trump singled out New York in his State of the Union address for implementing its own state policies. The next day, Acting DHS Secretary Wolf issued a statement that likewise criticized New York's policy choices. On February 5, DHS sent a letter to the New York State Department of Motor Vehicles stating that DHS would single out and target New York residents by no longer enrolling or reenrolling them in a number of Trusted Traveler Programs, including Global Entry, SENTRI, NEXUS, and FAST. DHS used New York's Green Light law as justification, despite the fact that 13 other states and the District of Columbia have also passed similar laws allowing undocumented immigrants to obtain driver licenses.

"We will not compromise our values nor back down when the federal government continues to unfairly and illegally target New York," Governor Cuomo said. "There are more than a dozen states - including red states - with similar laws, but President Trump and his enablers are once again taking their aim at New York's economy in a way that not only inconveniences travelers, but also creates very real security issues. Make no mistake we are fighting back and will be using every tool available to us to do so."

"New Yorkers will not be held hostage by an Administration intent on restraining the sovereign rights of states, while it simultaneously enacts discriminatory policies across the country," said Attorney General Letitia James. "Today, we are filing a lawsuit to stop the president and his Administration from punishing New York for passing its own laws. The Trump Administration's new policy not only negatively impacts travelers, workers, commerce, and our economy, but it jeopardizes public safety. No one should ever use our nation's security as a political weapon, let alone the commander-in-chief."

The lawsuit filed on Feb.10th highlights that the Trump Administration's new policy specifically defies the Intelligence Reform and Terrorism Prevention Act of 2004, which — under a Congressional mandate and recommendations from the bipartisan 9/11 Commission — called on DHS to establish an international registered traveler program for use by all states and territories of the United States. The decision to solely halt New York's participation in this program profoundly jeopardizes public safety for New Yorkers and all travelers. Further, the suit argues that this new policy is a punitive measure intended to single out New York and coerce the state into changing its policies to compel conformity with preferred federal policies.

Not only does this policy affect public safety, but it specifically harms New York's economy and commerce, as well as individual travelers. As fewer New Yorkers enroll and re-enroll in TTPs, consequences will ripple throughout the state. Congested lines at New York's airports — the top three of which served more than 138 million passengers in 2018 — and other border crossings will strain resources and undermine safety for all travelers. New York's economy will suffer as wait times at border crossings increase, employers doing global business will be placed at a competitive disadvantage, and residents who rely on cross-border travel will lose access to these programs.

DHS' decision immediately affects tens of thousands of New Yorkers and will impact hundreds of thousands of state residents within a year:

  • 50,000 individuals have been conditionally approved for Global Entry, but have not yet completed their interview and thus will be "cut off" from completing their application.
  • 30,000 additional New York residents are currently pending the vetting process for Global Entry.
  • Another 175,000 New Yorkers, whose Global Entry memberships expire this year, will not be permitted to re-enroll in the program.
  • Researchers estimate that reducing wait time at John F. Kennedy Airport alone could save millions of dollars in lost time.

Further, economists have estimated that border delays on the U.S./Canada border have already cost American businesses billions of dollars each year and resulted in tens of thousands of jobs lost, making the president's decision even more harmful to New Yorkers — especially those in Western New York. In fact, New Yorkers seeking to commute across New York's land borders with Canada — specifically those in Western New York — will be severely harmed by the Trump Administration's new policy:

  • 30,000 drivers in the FAST program will lose access to the automated system.
  • Drivers in the NEXUS program — which, in Western New York alone, services 6,500 trips across the Peace Bridge, the Whirlpool Bridge, the Lewiston-Queenston Bridge, and the Rainbow Bridge each day — would be severely handicapped.
  • 25-percent of auto traffic utilizing the Peace Bridge relies on the NEXUS program and 60-percent of truck drivers utilize the FAST program.
  • A car driven by a non-NEXUS driver typically takes four times longer to move across the Peace Bridge than a car driven by a NEXUS driver.

Additionally, DHS has stated that the exportation of used vehicles titled and registered in New York State could be delayed and could be costlier under its new policy.

The suit argues that DHS and CBP's policy specifically violates the equal protection guarantee of the Fifth Amendment, the Tenth Amendment's guarantee of equal sovereignty among the states, the Tenth Amendment's prohibition on coercive federal action, and the Administrative Procedure Act.

In addition to New York's suit, the New York Civil Liberties Union also filed a federal lawsuit against DHS and CBP. The NYCLU's case is brought on behalf of a class of the millions of New York residents who now have been barred from applying to enroll or re-enroll in Global Entry, including tens of thousands of residents whose applications were pending at the time of the ban. Like New York, the NYCLU contends the Trump Administration's actions violate the Administrative Procedure Act and the Tenth Amendment of the United States Constitution.

The federal government's decision to impose this new policy stems from a fight about New York's Green Light law. Last year, New York Governor Andrew Cuomo signed the Green Light bill into law, which allows undocumented immigrants to apply for driver licenses. The Green Light law was designed to make New York roads safer, provide a boost to the state's economy, and allow immigrants to come out of the shadows. Already, two separate federal courts have dismissed meritless lawsuits against the law. To ensure that those residents newly eligible for driver's licenses under the Green Light law come forward to apply for them, the law bars the release of applicants' personal information to federal immigration authorities, except as required by law.

New York residents who are already active Trusted Traveler Program participants will not have Global Entry participation or participation in any of the other programs revoked. While DHS has said TSA Pre will not be affected at this time, the agency has not ruled out further action in the future.

This matter is being handled by Assistant Attorney General Daniela Nogueira of the Division of Federal Initiatives, Civil Rights Deputy Bureau Chief Elena Goldstein, and Chief Counsel for Federal Initiatives Matthew Colangelo, as well as Deputy Solicitor General Jeffrey W. Lang and Assistant Solicitor General Linda Fang — both of the Division of Appeals and Opinions. The Division of Federal Initiatives is overseen by First Deputy Attorney General Jennifer Levy.

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