Last year, South Carolina’s legislature passed a law barring the state from implementing REAL ID. This particular federal boondoggle would put basic identity documents into nationally accessible government databases and promote tracking of law‐abiding citizens like they were criminals on parole.
But the U.S. Department of Homeland Security now threatens to make air travel and entry into some federal buildings inconvenient if Gov. Sanford doesn’t pretend that South Carolina might still implement the federal law. They want him to request an extension of the May 11 statutory deadline for compliance.
The case resembles a similar instance of strong‐arming in the early 1990s, when Congress passed a law requiring the state of New York to dispose of radioactive waste according to federal prescriptions or “take title” to the waste. If state officials didn’t do what the federal government said, they would have the burden of owning all this waste dumped in their laps.
In 1992, the Supreme Court ruled on the case, issuing the first in an important line of decisions that is beginning to restore balance to the state‐federal relationship. The federal law violated the constitutional structure of our governmental system, the court said, by attempting to “commandeer” the state into implementing a federal program.
States are sovereign entities, not administrative outposts of the national government. Allowing the federal government to commandeer states would blur lines of responsibility, requiring state officials to raise taxes and make unpopular decisions on behalf of federal officials who really should be accountable. If the federal government wanted to take care of radioactive waste, the federal government should have figured out how to do it and how to pay for it.
The same applies to the national ID program in REAL ID. If the federal government wants to have a national ID system, the federal government should figure out how to do it and how to pay for it. Congress never even had a hearing to assess the costs, the complexities, or the privacy consequences of the REAL ID Act, much less whether the United States should have a national ID system at all. Instead, the federal government is trying to foist all this on the states.
If South Carolina doesn’t fall in line, the Department of Homeland Security threatens to attack South Carolinians’ right to travel.
These problems will be dumped in the laps of South Carolina’s leaders, like the radioactive waste the feds wanted to dump on New York.
Another way to look at it is as a form of hostage‐taking. If you don’t implement our national ID law, the federal government is saying to Gov. Sanford, we will make life miserable for the citizens of your state.
That’s unfair, and it’s probably unconstitutional.
Federal politicians didn’t give up on trying to commandeer state governments after the radioactive waste case. In a later case, Congress tried directly, requiring state officials to implement the Brady gun control law. The court struck that down, too.
With the REAL ID Act, the feds are at it again. The governor should use this opportunity to seek another Supreme Court ruling that respects the state‐federal balance.
Instead of backing down and abandoning his principled approach to government, the governor should sue the Department of Homeland Security under the 10th Amendment.
In standing up for the residents of South Carolina, he has a good chance to restore constitutional principles for all states. His constituents are not pawns in a power game.
And the South Carolina government is not a bureaucratic outpost of the federal government.