November 15, 2016 11:34AM

DHS: Even‐​handed Enforcer or Punisher of Select States?

Just over a month ago, another Department of Homeland Security deadline for state compliance with the provisions of the REAL ID Act passed. It was but the most recent in a series of deadlines DHS has improvised since the statutory May 2008 compliance date passed without a single state participating in the national ID program.

Time and again, when faced with resistance from the states, DHS has backed down. But the agency has had more success goading states toward compliance since it stopped issuing deadline extensions in the Federal Register and took the process offline to deal directly with individual states. Divide and conquer works.

A new series of deadlines assigns different states to one of three dates---January 30th, June 6th, and October 16th, 2017---depending on where they are in the compliance process. If the states in each category have not sufficiently answered to DHS by the relevant date, DHS will judge them non-compliant. As it has so many times before, DHS says their residents will then be at risk of having their state-issued IDs refused for federal purposes.

Because so much of this is happening behind the scenes, it is hard to gauge how DHS is choosing which states to play hardball with and which states to treat with kid gloves. But the staggered compliance deadlines have the feel of meting out punishment to states that have been the most vocal in their resistance to REAL ID. It does not have the feel of an agency neutrally enforcing a generally applicable law.

Consider the earliest group, which has a January 30th, 2017 deadline. It consists of Kentucky, Maine, Montana, Oklahoma, Pennsylvania, and South Carolina (as well as the U.S. territories of Guam and the Virgin Islands). DHS already considers Minnesota, Missouri, and Washington State "non-compliant" with REAL ID.

Each of these states has pushed back against REAL ID and, in doing so, seems to have incurred the wrath of DHS's bureaucrat-enforcers. Kentucky’s governor recently vetoed a compliance law. Maine, Montana, and South Carolina have had anti-REAL ID legislation on the books for nearly a decade (and show few signs of changing their stance), while Pennsylvania rejected compliance in 2012. Oklahoma and Missouri have had long running and vocal battles in their state legislatures over compliance. Minnesota and Washington State have been prioritizing their residents' privacy by refusing to amend state law for REAL ID, which will ultimately feed drivers' private data into a national database system.

The second group, with the June deadline, consists of Alaska, California, Oregon, and Virginia. All four states have resisted REAL ID compliance somewhat, but not to the same extent or with the same level outspokenness of the first group.

The final group of fourteen states consists of states that seem further along in meeting DHS's improvised standards (implemented with the barest arguable authority to do so in the terms of the law, by the way). These range from states that are actively working towards compliance, such as Arkansas and Texas, to Rhode Island, which has shown little sign of active compliance but already has in place strict, state-written requirements that dovetail with DHS's REAL ID requirements.

Based on how the groups are ordered, it's easy to see the first group as a "punishment group" singled out for active resistance to the national ID law. The chance of them meeting DHS's compliance requirements within three months is nil, so the deadline must be meant simply to engender panic among state officials and opinion leaders.

The January deadline is going to come and go like all of the previous deadlines. But DHS seems to be executing on a political strategy to punish recalcitrant states rather than enforcing federal law in an even-handed way.

The REAL ID law was called unworkable by the chairman of the Senate Homeland Security and Governmental Affairs Committee when it passed. DHS is gamely trying to press states toward compliance anyway. Its inventiveness in rewriting the law and improvising deadlines draws into question whether the agency is acting with dispassion or with vindictiveness toward states that it sees as opportune victims of federal punishment.