State-Federal Showdown over Real ID National License Averted

By | April 11, 2008

The clash between the states and the federal government over nationwide rules to make driver’s licenses more secure has ended — for now. A truce, of sorts, between the 50 states and the U.S. Department of Homeland Security, has kicked the issue down the road for the next president and Congress to hash out almost two years from now.

In a game of chicken over whether the federal government actually would pursue its enforcement threats, Maine this week became the last state to receive an extension to comply with the Real ID Act, the federal law aimed at keeping driver’s licenses out of the hands of terrorists and illegal aliens.

Without that extension, residents of Maine and the other states that flirted with last Monday’s deadline (March 31) could not have used their driver’s licenses to board airplanes and enter federal buildings after the rules take effect May 11.

DHS now says all states are in compliance with Real ID, but opposition to the act remains strong. Bills introduced in 11 states this year would bar participation in Real ID, including one that has made it to the desk of Idaho Gov. Butch Otter (R), who has long opposed the law, according to his spokesman.

With the immediate crisis averted, the next showdown could come at the end of the extension, in January 2010, when there will be a new Congress, a different president and very likely another secretary of homeland security.

Democrats in the current Congress have submitted bills to repeal Real ID, but none has made it out of committee, even from the Senate Judiciary Committee, where Chairman Patrick Leahy (D-Vt.) is a co-sponsor of such a measure.

Tim Sparapani, a lawyer for the American Civil Liberties Union, said divisions among Democratic members of Congress over homeland security and immigration issues have prevented them from pushing the bills further. “It’s a question of whether requiring proof of identity actually improves security or violates the privacy and civil liberties of law-abiding Americans,” he said.

Late last year, for example, a proposal by then-Gov. Eliot Spitzer (D) of New York to allow illegal immigrants to get driver’s licenses was roundly criticized even by many of the state’s congressional Democrats. U.S. Sen. Hillary Rodham Clinton (D-N.Y.) was caught in political crossfire over whether she supported or opposed the governor’s plan.

Both Clinton and her Democratic rival, U.S. Sen. Barack Obama (D-Ill.) have been quoted opposing Real ID.

Republican torch-bearer U.S. Sen. John McCain of Arizona has expressed his support for the act, while acknowledging that it is a burden on the states.

States have consistently railed against Real ID as a federal intrusion into their domain, a huge unfunded mandate and a threat to personal privacy. The measure was introduced in 2005 by U.S. Rep. James Sensenbrenner (R-Wis.), after the federal panel investigating the Sept. 11, 2001 terrorist attacks found that the hijackers possessed some 30 driver’s licenses or other state-issued ID’s among them. Real ID passed the Republican-controlled Congress in 2005 with no hearings and little opposition, attached to emergency funding for the Asian tsunami.

Under the act, states will have to verify the identity of all 245 million drivers and reissue new, more tamper-proof licenses. The law also requires motor vehicle departments to digitally store and share the information with other states.

But proposed rules, released in 2007, came with an estimated $14.6 billion cost for states, and Maine, Montana, New Hampshire, Oklahoma, South Carolina and Washington passed laws that year that said the states refused to comply. A dozen more states have approved resolutions calling for costs to be fully covered by Congress or the act repealed.

Final regulations, released by DHS in January 2008, gave states nearly five extra years to fulfill the law’s requirements and lowered the cost to an estimated $3.9 billion. The act also allows states to delay implementing the rules until the end of 2009, but they had to ask for an extension by March 31 or their residents’ driver’s licenses would be refused as identification for commercial flights and for entry into federal buildings starting next month.

All but a handful of states quickly asked for and received the extension, including Washington and Oklahoma, two of the six states that rejected the law through statutes.

The other states with laws rejecting Real ID — Maine, Montana, New Hampshire and South Carolina — held out until late in March. By the deadline, all of these but Maine had received extensions — that their governors said they weren’t seeking — by sending letters outlining the steps their states had taken to make licensing more secure.

“The federal government should be interested in results, not words, and your letter offers results that will greatly improve South Carolina’s driver’s license security,” explained homeland security Secretary Michael Chertoff in his March 31 letter granting an extension to The Palmetto State.

Maine sent a similar letter, which DHS rejected on the deadline, citing flaws in its law that allows the state to issue driver’s licenses to illegal immigrants. The state is one of six that still does not require proof of legal residence for driver’s licenses.

After a two-day grace period beyond the deadline, Maine and the homeland security agency reached an agreement: DHS approved an extension on April 2 — despite the state’s explanation that it wasn’t really asking for an extension and has a law refusing to meet Real ID’s demands; Gov. John Baldacci (D) agreed to submit legislation to make driver’s licenses available only to U.S. citizens or immigrants in the country legally.

Barry Steinhardt, an ACLU director, said Maine’s extension shows that the homeland security agency was “desperate to show a victory.”

“The fact is that all 50 states, including those that have said they cannot commit to implement the law, have now received extensions, signaling DHS’s continued determination never actually to enforce Real ID. It has nearly perfected the practice of kicking the can down the road,” Steinhardt said.

Contact Eric Kelderman at:

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