Bills to repeal the REAL-ID Act of 2005 were introduced yesterday in both houses of Congress by the members of Montana’s Congressional and Senate delegation:
- H.R. 4375 (“Repeal ID Act of 2016), sponsored by Rep. Ryan Zinke
- S. 2440, sponsored by Sen. Jon Tester and Sen. Steve Daines
Sen. Daines: “Montanans have spoken loud and clear: we don’t want REAL ID and we don’t want the federal government infringing on our personal privacy. The Repeal ID Act ensures Montanans’ voices are heard and will help strike the right balance that protects our security while also safeguarding Montanans’ civil liberties.”
Sen. Tester: “REAL ID violates the constitutional freedoms of law-abiding Americans and has no place in Montana. I will continue my fight to protect Montanans from this costly overreach that invades privacy and forces local taxpayers to foot the bill.”
Rep. Zinke: “Rolling back these Washington mandates is important to ensure Montana’s state sovereignty. While maintaining security standards is important, we cannot allow the federal government to infringe on our right to privacy and strip Montana of our state sovereignty.”
Implementation of the REAL-ID Act, including the creation of a distributed national ID database, would depend on the collaboration of state government agencies. In the absence of any Federal authority to compel state compliance or impose sanctions on states that don’t comply, that collaboration hasn’t been forthcoming. Few, if any, states have fulfilled all of the requirements of the REAL-ID Act including unrestricted access by agencies of all other states, the District of Columbia, and US territores to the entire contents of their drivers’ license and ID databaases.
Several states have gone further, and taken affirmative action to make sure that rogue state drivers’ licensing agencies don’t plug their databases into the national REAL-ID “hub”. Minnesota’s law, for example, was passed in 2009 with near-unanimous bipartisan support, and remains on the books: “The commissioner of public safety is prohibited from taking any action to implement or to plan for the implementation by this state of those sections of Public Law 109-13 known as the Real ID Act.”
States like Minnesota and Montana can and should stand firm in saying “No” to nonbinding Federal requests to implement the REAL-ID Act. The DHS has “discretion” to postpone its self-imposed “deadlines” for compliance indefinitely, and to grant “waivers” or “extensions” to noncompliant states, even if those states don’t request them. The DHS criteria for its discretionary certification of some states as making sufficient progress toward compliance don’t yet include the most difficult, expensive, and intrusive requirement of the Federal law: unrestricted nationwide database access for all other states, the DC, and territories.
The latest DHS postponement of its “deadlines” late last Friday sets the date after which it threatens (illegally) that “noncompliant” ID won’t be “accepted” at TSA checkpoints for domestic air travel as October 1, 2010 — one month before the 2020 Presidential and Congressional elections. Trying to carry out that threat would be political suicide for any Federal politician. A threat to have Federal agents at airports bar all residents of any state — even a small one like Montana — from all domestic flights, starting a month before a Presidential election, wouldn’t be credible even if it were legal, which it isn’t.
States can choose to comply with the REAL-ID Act while allowing allow their residents the illusion of “opting out” by choosing a non-compliant driver’s license or ID card. But to be compliant with the Federal law, a state will have to include its information about the holders of those non-compliant cards in the database it makes available to all other states. People who chose a non-compliant card will have opted out of having a gold star for compliance (literally) on their license or ID card. But they won’t have opted out of having their information included in REAL-ID Act national database access.
People who want an ID card valid for “Federal purposes,” but don’t want a card issued by a compliant state, can get an enhanced drivers license from a noncompliant state, or a passport card from the Department of State. But both enhanced drivers’ licenses and passport cards contain long-range remotely-readable RFID chips that broadcast a unique chip ID number and are designed to enable drive-by identification and tracking of drivers and passengers in vehicles. which are added to the same DHS records as logs of vehicle positions and movements obtained from automated license plate readers.
None of these workarounds really work to protect state residents’ right to travel freely. The problems of the REAL-ID Act, and the drumbeat of threats from the DHS, won’t go away for good unless and until either (1) Congress repeals the REAL-ID Act, or (2) Federal courts find that it is unconstitutional.
Individuals who value their right to travel freely, and state officials who support them, need to work toward both those goals. They need to prepare to work to get their Congressional and Senatorial delegations to join in co-sponsoring these bills to repeal the REAL-ID Act, and bringing them to a vote. And they need to prepare to intervene in, or to initiate, litigation to defend any residents of their states whose rights are interfered with because the DHS decides that their state is insufficiently “compliant” with the unlawful REAL-ID Act.