The REAL ID Act: An Update


In just seven short months, states will begin issuing drivers’licenses and identification cards in accordance with federalstandards, and they’ll begin making their databases of driverinformation available nationwide. At least, that’s how the REAL IDAct would have it.

In fact, it’s unlikely that a single state will comply with thisnational ID law — a whopping unfunded surveillance mandate passedhastily by Congress in May 2005. The Department of HomelandSecurity asked states to commit to REAL ID or ask for an extensionby October 1st, so now is a good time to review where things arewith REAL ID, and perhaps see where they’re going.

Congress passed REAL ID in May 2005. Attached to a military spending bill, it was adopted withouta separate vote in the Senate and without a hearing in either houseof Congress. The law purports to set federal standards forstate‐​issued drivers’ licenses and IDs. If states don’t meet thestandards by May 2008, it says, they won’t be acceptable forfederal purposes. The most important of these purposes is airtravel — showing ID at airport checkpoints — but the law allows theDepartment of Homeland Security to add others.

Driver licensing and identification policy have always beenbased on local needs, but the REAL ID Act sought a federal takeoverof Departments of Motor Vehicles. REAL ID would require state DMVsto accept a federally defined set of documents as proof ofidentity, and it would require DMVs to verify these documents withissuers — never mind that the infrastructure for doing this ispretty much imaginary. More concerning, REAL ID would require allIDs and licenses to have a common “machine‐​readable technology” — the groundworkfor routine, automated checking of all Americans’ IDs. Even worse,DMVs would make the driver information in their databases availablenationwide. The privacy and data security of Americans? DHS woulddeal with it in the regulations.

In late 2006, with the REAL ID deadline looming and noclarifying regulations out of the DHS, state leaders were getting antsy. Facing an unfundedmandate estimated at $11 billion — a mandate to build afederal surveillance infrastructure, no less — states across thecountry began to voice their displeasure. Maine was first. A bipartisan, nearly unanimousresolution against REAL ID passed both the state senate and thestate house on the same day.

When the regulations finally did come out, they gavestates no solace. The total cost of compliance, by DHS’s ownestimate, was $17 billion. And Americans’ privacy and datasecurity? DHS left it to the states. The regulatory analysis of itswork — DHS’s big chance to show how REAL ID would benefit thecountry — made no attempt to describe — much less quantify — howREAL ID would add to the nation’s protections. It did find thatREAL ID might suppress identity fraud — but by an embarrassinglysmall amount. REAL ID would bring a dime in identity security forevery dollar spent.

The regulations proposed an interesting bargain to states: Ifthey committed to compliance by October 2007, the Department ofHomeland Security would ignore the law’s deadline and give themuntil December 2009 to figure out how to do it. The deal did notwin states over to DHS’s national ID program, though, and theycontinued to pass resolutions and bills outright refusingparticipation in REAL ID. A total of 17states have now passed such legislation.

In the meantime, Congress was taking notice of what it had done​.In early 2007, it held its first hearings on the law passed two years prior. Thishelpful exposure of the errors in REAL ID’s ways was not enough toprompt corrective action, but a couple of times since then REAL IDhas come up in Senate debate. These episodes reveal the lack ofsupport for a national ID now that the idea has gotten someexamination.

In the debate on immigration reform, for example, REAL ID waspart of the consensus bill’s “internal enforcement“provisions, requiring Americans to have a REAL ID when they appliedfor work. In the United States of America, a national ID would havebeen required to earn a living. This noxious provision catalyzed the downfall of the immigration bill.When the Senate refused to table an amendment striking REAL ID fromthe bill, debate stalled, and the bill died.

A similar vote during debate on the Department of HomelandSecurity appropriations bill a month later again showed that theSenate has no stomach for the REAL ID Act. Taking the stance thatCongress should fund REAL ID or repeal it, Senator Lamar Alexanderoffered an amendment to spend $300 million dollars ongrants to states for REAL ID compliance. The Senate did not adoptthe amendment.

With a significant number of states committed not to implementthe national ID plan, the Congress unwilling to prop it up or fundit, and the DHS yet to issue final regulations, REAL ID is mostlydead. But government contractors and state bureaucrats are stillworking to build this national ID system, going so far as to trainup for REAL ID advocacy using taxpayer funds. At a recent REAL ID conclave in Washington, D.C., DMV bureaucratssat through panels with titles like, “Bringing Your Public Onboard.…”

Some border states are pushing forward with licenses and IDcards that might be REAL-ID- compliant because DHS is holding themout as a potential border crossing card. The Western Hemisphere Travel Initiative — anotherof the federal government’s false‐​security excesses — restrictedAmericans’ travel to Canada and other neighboring countriesstarting in January. Because of this, and despite legislation to reject REAL ID, thebureaucracy in Washington State, for example, is moving forward with a “hybrid” license easilyconvertible to the REAL ID system.

Good things are happening in other states, though. In New York,Governor Elliot Spitzer has taken a sensible approach — treatinghis state’s driver’s license as simply that: a license to drive. Herecently announced that drivers’ licenses would beavailable to New Yorkers without regard to their immigrationstatus. Spitzer’s belief is that using the driver’s license as animmigration card causes illegal immigrants to avoid licensing andthe training that comes with it. This increases unlicensed driving,uninsured driving, and hit‐​and‐​run driving. It raises insurancecosts for legal drivers and increases roadway injuries. Spitzer isnot willing to shed the blood of New Yorkers to “take a stand” onimmigration, which is not a problem state governments are supposedto solve anyway.

It’s a welcome — and somewhat surprising — move, to see aDemocrat and law‐​and‐​order‐​type former attorney general resistmission creep in a state bureau and hold fast to the federal systemdevised in the constitution. But he’s done the right thing. Thanksmost recently to Governor Spitzer, and to state leaders from acrossthe ideological spectrum, REAL ID is in collapse. There are billsin the U.S. Senate and House to repeal REAL ID, but Congress has yetto fully acknowledge its error. And advocates for a national ID,and all the surveillance that comes with it, will not give upwithout a fight.