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States Push Back Against Real ID

​STARTING LATER THIS MONTH, employees entering the U.S. Department of Homeland Security (DHS) headquarters in Washington, D.C., will have to show an ID that is compliant with the Real ID Act to enter the building. This is the first phase in the implementation of the act, which has been riddled with controversy since it was passed by Congress in 2005.

Initially, Real ID was set to go into effect in 2008, but DHS met resistance and was forced to grant extensions, delaying its timetable for full enforcement to beyond 2016. In January 2014, only 21 states fully met the act’s minimum standards for improving security for state-issued driver’s licenses and ID cards. DHS has granted extensions to 20 states and territories that provided information demonstrating that they’re on the path towards achieving full compliance. However, 15 states and territories were classified as noncompliant, and 16 states have enacted laws saying they will not fully comply with Real ID, creating even more delays for full enforcement.

The Real ID Act was passed by Congress after it received recommendations from the 9/11 Commission to “set standards for the issuance of sources of identification, such as driver’s licenses.” This recommendation was made because driver’s licenses were seen as vulnerable to terrorists after it was discovered that some of the hijackers involved in the 9-11 attacks had multiple U.S. driver’s licenses under multiple identities.

To make driver’s licenses more secure, the act established minimum security standards for license issuance and production for all U.S. states and territories. It requires those applying for a license to produce a photo ID, documentation showing their date of birth, proof of their Social Security number or verification that they’re not eligible for Social Security, and documentation showing their name and address of their main residence. Once provided to the state or territory, these documents are captured digitally so they can be retained in a transferable electronic format for 10 years and made available to all other states.

A person who can provide this documentation can be issued a Real ID-compliant driver’s license that can be used to access certain federal buildings, nuclear power plants, and federally regulated commercial aircraft.

Beginning on April 21 of this year, Phase 1 of enforcement of the Real ID Act will go into effect at DHS’s headquarters in Washington, D.C. DHS personnel, contractors, and their guests will be required to show IDs that are compliant with Real ID to access restricted areas. If their IDs come from a state that is not compliant with Real ID or hasn’t been granted an extension, then they’ll be forced to use alternative forms of identification, such as a U.S. passport or military ID, to gain entry.

In Phase 2, DHS will notify restricted areas of all other federal facilities and nuclear power plants in the country that they have a three-month period to move towards Real ID compliance.

Phase 3 is similar, applying to most semi-restricted federal facilities beginning January 19, 2015. However, access to federal facilities will continue to be allowed for the purpose of applying for, or receiving, federal benefits regardless of ID.

Following the implementation of the first three phases of enforcement, DHS plans to evaluate the effects of enforcement and the progress of states meeting the standards of the act before moving on to Phase 4, which will change the forms of ID passengers can use to board federally regulated aircraft.

Phase 4 is expected to begin no sooner than 2016, and DHS has planned to ensure that the public has advanced notice before identification requirements change to board flights. However, Chris Calabrese, legislative counsel for the American Civil Liberties Union (ACLU), says that he thinks it’s unlikely that DHS will ever reach Phase 4 because it would “paralyze” the air transportation system and deny tens of millions of Americans the right to fly.

“Can you imagine the chaos if DHS suddenly said that 15 states’ driver’s licenses wouldn’t be good for air travel? It’s just never going to happen,” he contends.

One of the main concerns leading states to oppose implementation of Real ID is the belief that it turns driver’s licenses into national ID cards. Opponents of the act say that driver's licenses would become a “de facto government permission slip needed by everyone” to travel and that, like Social Security cards, IDs could be used for other purposes, including work, voting, and gun ownership, according to a statement the ACLU submitted to Congress in 2012.

There’s also concern among the states and watchdog groups that with the Real ID, states will be creating a database of everyone’s personal information, risking identity theft if someone were to hack into the database, Calabrese explains. “[Real ID] also creates a giant database of everybody’s personal information… increases the risk of identity theft , and forces everybody to sort of be jammed into a one size-fits-all federal mandate for how they get a driver’s license,” he says.

DHS maintains that Real ID doesn’t turn driver’s licenses into national identification cards because states and territories will continue to issue driver’s licenses and ID cards. It also says that there will be no federal database of driver information, and each jurisdiction will issue its own unique license and maintain its own records.

While making people prove that they are who they say they are is logical, the document requirements of Real ID are burdensome, Calabrese says. The process makes it difficult “for folks who’ve lost their birth certificate in a fire, or changed their name,” he explains.

Additionally, at an estimated $23 billion, Real ID has been expensive for states and territories to implement, receiving only a small fraction of funding from the federal government in the form of grants. In the statement it presented to Congress, the ACLU said that since Real ID’s passage, Congress has appropriated only $200 million for compliance with the law.

Along with the financial costs, 16 states have passed laws saying they will not comply with Real ID for a variety of reasons, forcing DHS to continue to push back its full enforcement goal date from 2008 to beyond 2016. Many state laws, such as Alaska’s, say that they will not expend funds to implement the law. Other states, such as Georgia, have passed laws calling for state officials to delay provisions of the law, and some, like Louisiana, have gone so far as to pass laws saying that they will report any activity to implement the law to the governor.

Stephen Vladeck, law professor and associate dean for scholarship at the American University Washington College of Law, says that while states have passed these laws, the Supremacy Clause in the U.S. Constitution prevents their enforcement. The Supremacy Clause says that the “Constitution and the Laws of the United States…shall be the supreme law of the land,” meaning that the federal government prevails over any conflicting state law.

Because of this, the federal government has several options in how it can proceed to force states to comply with Real ID. Vladeck compares the practice to when the government strongarmed the states into increasing the drinking age to 21 by denying them highway funding. Eventually, the states increased their drinking age so they could properly fund road maintenance. The federal government could do something similar with Real ID, Vladeck suggests.

Another option available to the federal government to enforce Real ID is to take a state to court, as the federal government did when it challenged Arizona’s controversial immigration law. The case went through the court system, ultimately ending up at the U.S. Supreme Court, which ruled that Arizona’s law was inconsistent with federal law and therefore unconstitutional. The federal government could do the same by challenging states in court. However, Vladeck says that because of differences in the state laws, the federal government might have to sue each state individually.

Regardless of state actions, DHS intends to move forward with enforcement, to work with states to reach compliance, and to help states qualify for extensions under the law.