The Feb. 5 decision by the Department of Homeland Security (DHS) to halt Global Entry enrollment and re-enrollment by New York residents has placed the trusted-traveler program in the middle of a broader immigration dispute between the Trump administration and the state.
But though New York Gov. Andrew Cuomo proffered a compromise proposal on Feb. 12, it might be left to the federal courts to determine if the enrollment ban will stand.
New York sued the DHS and U.S. Customs and Border Protection (CBP) on Feb. 11, alleging that the trusted-traveler ban undermines public safety and harms the New York economy while violating the 10th Amendment's protection of states' rights and the Fifth Amendment's guarantee of due process.
The New York chapter of the ACLU has also filed suit over the ban.
Along with Global Entry, the ban applies to the trusted-traveler programs Nexus, Sentri and Fast.
Global Entry provides expedited re-entry access through customs to U.S. travelers returning from abroad via air or sea. Nexus provides expedited crossings between the U.S. and Canada and Mexico. Sentri provides expedited crossings specifically between the U.S. and Mexico. Fast is an expedited entry and exit program for commercial truck drivers.
The ban doesn't apply to the largest trusted-traveler program, TSA PreCheck.
The directive immediately shut out the approximately 80,000 New York residents who were in the process of applying for one of the impacted programs. In addition, if the directive stays in place, an estimated 175,000 people won't be able to re-enroll when their memberships expire this year.
The ban is the Trump administration's response to New York's Green Light Law, which allows undocumented immigrants to obtain a driver's license and bars the release of applicants' personal information to federal immigration authorities — notably Immigration and Customs Enforcement (ICE) and the CBP — without a court order or warrant.
The Green Light Law went into effect in December.
In implementing the ban, acting DHS secretary Chad Wolf said that without access to New York Department of Motor Vehicles (DMV) records, department personnel are not able to conduct proper risk assessments of trusted-traveler applicants, such as accessing applicants' criminal histories.
At a briefing in which he rolled out the ban to the news media, senior DHS official Ken Cuccinelli was among the first to publicly associate the enrollment halt with broader Trump administration immigration policy.
"President Trump has made it clear that if sanctuary cities and sanctuary states won't keep their people safe, we'll do our best to keep them safe," Cuccinelli said.
But in an animated news conference the following day, Cuomo called the policy "political extortion" and characterized it as retribution for various New York policies that run counter to White House positions.
"They want those records. I don't want ICE to have those records," Cuomo said. "Why? Because ICE will use those records as a means to do deportations."
New York's lawsuit asserts that criminal history information contained in New York DMV records is already shared with the FBI via the state's Division of Criminal Justice Services. The state has asked the court to declare the ban unconstitutional and to forbid the DHS and the CBP from enforcing it.
Still, two days after the suit was filed, Cuomo announced that he and President Trump were set to meet on Feb. 13 in Washington to discuss the dispute. Cuomo also said he would make the president and the DHS an offer: He would push for a change in the Green Light Law to allow for the DMV to provide the Homeland Security with records on trusted-traveler applicants only if the administration would agree to reinstate enrollment.
But speaking on local radio, Cuomo also said he doesn't expect Trump to accept the proposal, since the true intent of the ban is retribution against the state. Cuomo said he would "strip away any patina of credibility and government authenticity and expose this sham that they are running once again where they are using government to abuse people for political purposes."
Still, not everyone agrees on which entity is playing politics.
Peter Tarlow, CEO of the College Station, Texas-based travel security consultant Tourism & More, said that the Green Light Law and Cuomo are to blame for the stalemate.
Calling it "political from Gov. Cuomo," Tarlow said, "This is a way that he is trying to get political points. And that's really tragic."
Tarlow said that a lack of intergovernmental information-sharing had been exposed as a problem after 9/11.
"If, God forbid, there's a foul-up between one agency and the other and your child died because of the New York law, how would you react," he said.
But New York isn't alone in asserting that DHS doesn't need DMV records to examine the criminal backgrounds of applicants for trusted-traveler programs.
In a Feb. 7 letter requesting that Homeland Security turn over documents related to the enrollment ban decision, the Democratic leadership of the House homeland security committee wrote that a driver's license is not even required to participate in the programs and that citizens of 12 foreign countries are allowed to enroll.
The state's position is also supported by a June 2019 report by the Office of the Inspector General for the DHS, which listed 21 databases that the department vets during the Global Entry application process. Though not all of the databases relate to criminal backgrounds, the list includes the FBI's National Crime Information Center, Interpol files, the Terrorist Screening Database and the State Department's lost and stolen passport records, among others.
David Birdsell, dean of the Austin Marxe School of Public and International Affairs at New York City's Baruch College, said that New York and Cuomo have the better part of this argument.
"The kind of data [DHS is] prevented from seeing is residency status, infractions such a moving violations," he said. "This looks much more like retribution for a blue state than it does like an effort to protect the security of the United States."
In its lawsuit, New York alleges that the trusted-traveler ban will undermine the ability of CBP officers to focus their efforts on higher-risk travelers and will burden already-strained security systems. The state is also arguing that the ban will cause longer waits at airports and at U.S.-Canada border crossings, slowing economic activity.