November 23, 2015 10:01AM

Left Hand, Meet Right Hand: The U.S. National ID Bureaucracy

One reason to avoid the creation of a national ID system in the United States is that it would facilitate direct regulation of Americans from Washington, D.C. If you want to see why we should minimize regulation of the states and people from Washington, look no further than the Department of Homeland Security's administration of of the U.S. national ID program itself.

Congress is at fault for the passage of the REAL ID Act, of course. It didn't even hold a hearing to assess the merits or difficulties of coercing states into implementing a national ID. But the Department of Homeland Security has made a continuing hash of the national ID program since then.

Passed in May 2005, the REAL ID Act called for states to begin issuing national IDs in three years. DHS took until January 2008---four months before the deadline---to issue final regulations telling states what they were expected to do.

Needless to say, the DHS had to issue deadline extensions, as it has done repeatedly and en masse ever since. When states learned the costs and consequences of producing a national ID, more than half objected or barred themselves from complying. DHS has given every state extensions for the last eight years, whether it wanted to or not, and every state is operating under an extension right now.

You wouldn't believe that from the representations DHS has made to the public, which suggest that only a few hold-out states are resisting the national ID program. DHS's "REAL ID Enforcement in Brief" web page currently lists only two jurisdictions as non-compliant: Minnesota and American Samoa. The truth is that not one state or territory is in compliance---not one.

How does DHS claim all this compliance? When it granted the first round of deadline extensions---there have been several---it came up with a thing it calls the "material compliance checklist." The checklist is not compliance with the law, but with a pared-back version of the law's requirements. You might consider it DHS's in-house version of the REAL ID Act.

DHS uses the standards of its "material compliance checklist" to say that some states are in compliance even though they are not. In fact, some states whose legislatures have barred themselves from complying are compliant with REAL ID according to DHS. Bureaucratic double-speak thrives in Washington.

Another example of double-speak, though, is in the mixed messages DHS has been sending states about its most recent claimed compliance deadline. DHS has sought to both manufacture a national ID crisis and quell that crisis. Left hand, meet right hand.

Here, from a Minneapolis Star Tribune report, is Ted Sobel, director of DHS's Office of State-Issued Identification Support, telling Minnesota legislators that their state's licenses will soon be refused at all the nation's airports: "We essentially have 43 boxes we have to check, and currently Minnesota does not check all those boxes. We do not have the discretion to say 'Well, the law has 43 things, but we can just give a waiver to 10 of them.'"

(He's not being truthful. REAL ID has more than 100 requirements. DHS has used its discretion to pare them back to forty-three.)

In New Mexico, DHS's scare tactics have worked too well, and people are flocking to get passports, thinking that they'll need them to travel. One report has it that appointments for passports are booked until February. So another DHS bureaucrat has stepped in to say that DHS is at leisure to delay enforcement as long as it wants.

Last week, Philip A. Mcnamara, Assistant Secretary For Intergovernmental Affairs at DHS, wrote in the Albuquerque (NM) Journal, saying, "Right now, no one needs to adjust travel plans, rush out [sic] to get a new driver’s license or a passport for domestic air travel. And when you do, we will make sure you have plenty of notice."

One hand tells state legislators that enforcement is coming, and it's out of the DHS's hands. Another hand says relax. DHS can decide the time and terms of REAL ID enforcement.

More than a few editorial boards, goosed by DHS's manufactured urgency, have adopted what appears to them the reasonable position, arguing that their states should implement REAL ID. But doing so will subject their state's residents evermore to licensing and ID policies driven by federal agencies that produce this kind of prevarication and double-speak.

What matters, of course, is whether having a U.S. national ID would produce cost-effective security. It wouldn't. The costs---in dollars, privacy, and security of personal information---are greater than any plausible security benefits. The practical state response to REAL ID is continued state refusal.