Time, Once Again, for Our Odd National ID Ritual

It doesn’t happen on the same cycle as our annual holiday traditions, but the arrival of another REAL ID compliance deadline means that it’s time for some comfortable and time-worn rituals.

Federal bureaucrats caroling? Security hawks lighting the menorah? Alas, nothing so charming.

The January 15 “deadline” for state compliance with our national ID law, the REAL ID Act, will bring out state and local officials worrying about whether people will be able to board planes in late January. You see, REAL ID says that federal officials like the TSA can’t accept IDs from non-compliant states. Greg Roberts from the Lafayette (LA) Regional Airport thinks the TSA might turn away travelers bearing IDs from his state next month.

Federal officials will then send worried missives to Department of Homeland Security Secretary Janet Napolitano. “What will become of us if you don’t extend the deadline?” they’ll plead, hoping for their constituents to hear. Senators Jeff Bingaman (D) and Tom Udall (D) of New Mexico did that this week.

Next comes the secretary of homeland security.

Sometimes, our top homeland security official is very, very scary toward the states, like Michael Chertoff was. “There comes a point in time where all the discussion and analysis has to stop,” he said in a press conference nearly five years ago. “The time has come to bite the bullet.”

Sometimes, the DHS secretary is very, very quiet, like Janet Napolitano. Having blocked REAL ID legislation as Arizona’s governor, she’s been all over the map since becoming a federal official. She knows REAL ID is going nowhere, but she doesn’t want to attract the slings of Republican security hawks who would try to blame her and President Obama for it.

And that’s the most amusing part of this tradition. REAL ID is going nowhere fast. But people in the press don’t know that. And state and local officials don’t follow the issue carefully, so they think they have to fall in line with the national ID program. Yet they never have, and they never will.

Perhaps a chronology will help illustrate how meaningless REAL ID’s deadlines have been:

  • On May 11, 2005, Congress passed the REAL ID Act. “Beginning 3 years after the date of the enactment of this division,” it said, “a federal agency may not accept, for any official purpose, a driver’s license or identification card issued by a State … unless the State is meeting the requirements of this section.” That meant that in 2008, states were going to have to issue REAL ID-compliant, national-ID drivers licenses.
  • On March 1st, 2007, DHS Secretary Chertoff announced that states may seek “justifiable extensions” through December 31, 2009. Fourteen months ahead of REAL ID’s original deadline, things were going slowly. DHS finally came out with a proposed rule a week later.
  • On January 29, 2008, four months ahead of the statutory deadline, the DHS issued its final REAL ID rule. Nobody was going to be ready, so it asked states to request extensions by March 31, 2008. It made May 11, 2011 a new deadline, available on demonstration by October 11, 2009 of “achieving certain milestones” captured in a “Material Compliance Checklist.”
  • Starting in 2007, though, states across the country had started passing legislation barring themselves from complying with REAL ID and denouncing the law. By 2009, half the states in the country would say “NO” to REAL ID.
  • When the March 31, 2008 deadline for extension requests came, several states didn’t even ask for one. Montana notified the DHS that it was not going to comply with the REAL ID Act, ever. DHS saw the writing on the wall and treated the notification as a request for an extension—and granted it.
    The Missoulian reported ”Montana Wins REAL ID Standoff.” New Hampshire won, too. And so did South Carolina.
    By September 2009, several states were declining to ask for a second extension (with a showing of material compliance), so the DHS moved the deadline for extension requests to December 2009. And in December 2009, with states still refusing compliance with REAL ID, the DHS stayed the compliance deadline “until further notice.”
  • In March of 2011, the DHS quietly extended the deadline again, this time to the current date of January 2013.

So you can see just how unserious the forthcoming REAL ID deadline is. Before the deadline arrives, the DHS will extend it once again. Federal bureaucrats and national ID advocates continue to claim progress on corralling states into the national ID system, but states they claim to be “in compliance” are actual meeting a vastly pared-down “material compliance checklist.” There’s no REAL ID implementation anywhere.

Congress should stop funding the moribund national ID, and it should do away with the national ID law entirely. Until it does, we’ll continue to have these rites of passage for REAL ID deadlines, with state officials worrying, federal officials worrying, and Americans wondering why they can’t just cancel the whole thing.