Just days after posting an out-and-out lie on DHS.gov about whether states that want to comply with the REAL-ID Act have to give other states unconditional access to their drivers’ license and ID database (they do, contrary to what the DHS claims), the DHS has posted an equally blatant lie about whether domestic air travelers do or will have to show ID (they don’t and they won’t, contrary to what the DHS claims).

Today’s whopper is part of a press release attributed to Secretary of Homeland Security Jeh Johnson, announcing arbitrary dates for “enforcement” of alleged REAL-ID Act requirements. One might expect those dates and requirements to be spelled out in the U.S. Code or in regulations published in the Federal Register. But rulemaking by press release, Web posting, or Tweet has become the norm for the DHS as part of its enforcement of standardless, discretionary, and secret adminstrative “law”.

Today’s announcement by the DHS comes in the midst of a new round of vigorous debate by state officials as to whether to agree to comply with requirements of the REAL-ID Act that they continue to find objectionable — especially with respect to its mandate for a distributed but integated and nationally accessible ID database. It also comes almost simultaneously with the introduction in both houses of Congress of bills to repeal the REAL-ID Act.

The REAL-ID Act does not purport to create any legal obligation on states to comply. It can’t: The Federal government has no authority to compel the enactment of state legislation. If financial carrots in the form of Federal grants to fund REAL-ID Act implementation aren’t sufficient to win over states that stand up for their residents’ rights, the only stick the Federal government has available to induce those states to comply with the REAL-ID Act is the threat to harass, delay, or prevent residents of those states from traveling by air.

Today’s DHS press release and Tweet make that threat explicit.

@DHSgov Tweets, “#REALID UPDATE: *STARTING Oct. 1, 2020* Every air traveler will need a compliant REAL ID.”

And DHS Secretary Johnson spells out what he and his Department think that means:

Starting January 22, 2018, passengers with a driver’s license issued by a state that is still not compliant with the REAL ID Act (and has not been granted an extension) will need to show an alternative form of acceptable identification for domestic air travel to board their flight….

Starting October 1, 2020, every air traveler will need a REAL ID-compliant license, or another acceptable form of identification, for domestic air travel.

The problem is that there is, in fact, no basis for these DHS claims about a “requirement” or “need” to show ID to travel. No publicly-disclosed law or regulation, including the REAL-ID Act and the regulations issued by the DHS to implement it, imposes such a requirment on air travelers. And no court has ever reviewed, much less upheld, such a requirement or a DHS claim of authority to impose it by secret administrative directive.

“People fly without ID every day. We have a procedure for that,” the TSA has testified in court. The TSA’s responses to our FOIA requests confirm this.

The TSA’s “ID verification” procedure for people without acceptable ID involves a form for which the TSA still has never gotten the OMB approval and OMB control number required by law, and a bizarre game of “20 questions” based on commercial data aggregated by Accurint, a data mining contractor.

Court challenges to the Constitutionality of the TSA’s “ID verification” program for travelers who don’t have ID the TSA deems acceptable will become inevitable once the TSA begins applying this “ID verification” questioning scheme to everyone who shows up at an airport with no ID except a driver’s license from a “non-compliant” state.

Decisions in those cases are likely to be crucially influenced by the outcome of law student and professional troublemaker Jonathan Corbett’s current pro se Federal lawsuit challenging TSA-mandated “security interviews” and denial of air transport to (some of) those travelers who chose to exercise their right to remain silent in response to these (outsourced and privatized) third-party administrative interrogations.

Previously-secret directives from the TSA to airlines disclosed to Mr. Corbett in response to his lawsuit define declining to answers airline questions as per se suspicious and as shifting the burden onto would-be travelers to “resolve” these suspicions.

In response to Constitutional challenges, courts have upheld limited warrantless, suspicionless, administrative searches at various types of checkpoints. But so far as we know, in each of those cases the reviewing courts have been told or have assumed that individuals were free to decline to answer any questions at these checkpoints, and could not be detained more than briefly without probable cause.

So far as we know, no court has ever upheld the denial of passage through a checkpoint or the imposition of sanctions, beyond brief delay, for exercising the right to remain silent at such a checkpoint, without some (other) articulable basis for probable cuase to believe they have committed some crime. Exercising one’s Fifth Amendment right to remain silent cannot legally be deemed “suspicious” by a federal agency, just as it cannot constitute probable cause for arrest or prolonged detention, nor can it constitute evidence of guilt.

Back in 2008, before one of the DHS postponements of its self-imposed “deadlines” for REAL-ID Act enforcment, Secretary of Homeland Security Michael Chertoff said only that air travelers not showing “compliant” ID would be subjected to “secondary screening”. Constitutionally suspect as that may have been, today’s statement by Secretary Johnson that the DHS intends eventually to prevent these individuals from traveling, not merely search them or question them, has clearly exceeded Constitutional limits.

With today’s press release (and whatever secret directives the TSA is sending to checkpoint staff and/or airlines), the DHS has punted its stand-off with state governments over “compliance” with the REAL-ID Act past the November 2016 Federal elections. But the DHS has also put state governments on clear notice that the DHS intends — unless the REAL-Act is repealed by Congress or overturned by Federal judges — to wage an unlawful and unconstitutional campaign of harassment, delay, and/or denial of the right to travel by air against residents of states that the DHS deems insufficiently “compliant”.

In today’s press release, Secretary of Homeland Security Jeh Johnson says, “I urge state government leaders to take immediate action to comply with the Real ID Act, to ensure the continued ability of their residents to fly unimpeded.”

We thought the ability of all US residents to travel unimpeded was guaranteed by Federal law, by the Bill of Rights, and by international treaty. But if Secretary Johnson and the DHS don’t understand or respect the Constitution, and are going to make threats like this, state officals need to prepare to defend their residents’ rights against the DHS.

States now have some time to plan and act. But they need to start now, and on both fronts, as we suggested in our testimony yesterday to Minnesota legislators: directing state officials to prepare to initiate or intervene in litigation as necessary to secure and defend the right of state residents to travel by air within the US, and working with their Congressional delegations to get Congress to repeal the REAL-ID Act to avert the need for that litigation.