Under the pressure of empty (but scary) threats by the Federal government to harass residents of states whose governments the DHS doesn’t deem sufficiently “compliant” with the REAL-ID Act of 2005, many state governments are trying to find ways to “comply” with DHS desires without selling out their residents’ rights.

State legislatures in New Hampshire, New Mexico, Minnesota, Oklahoma, and Missouri, among others, are currently considering bills that would create “two-tier” systems of compliant and noncompliant driver’s licenses and state ID cards in, and would allow individual residents of those states to “opt out” of having driver’s licenses or state IUD cards that comply with the REAL-ID Act.

Some of the sponsors of these bills mean well, but what they are proposing — whether or not they realize it — is capitulation, not compromise.  Worse, these”two-tier” systems would give state residents who “opt out” of having a compliant license an illusion of security, while their personal information from state records would in fact be included in the nationally distributed ID database.

In order to put a gold star for REAL-ID Act compliance on anyone’s driver’s license or state ID card, the REAL-ID Act requires each state to make its entire database of information about all holders of driver’s licenses and state ID cards accessible to all other states and territories.  States can choose to issue noncompliant ID cards without the gold star to individuals who opt out of providing birth certificates and other documents or complying with other provisions of the REAL-ID Act. But the Federal law doesn’t let states give individuals a choice about having their information in the database.

In order for anyone in a state to get a compliant license or state ID card, information about everyone with any sort of driver’s license or state-issued ID card must be included in the database made available to all other states and territories.

As soon as a state issues its first gold-starred license or ID, it is committed to share its entire database of information about everyone with any sort of state-issued ID card. The only way for a state to opt-out of the REAL-ID Act distributed national ID database is not to issue any compliant licenses or ID cards.

The DHS hasn’t included compliance with the database access provisions of the REAL-ID Act in its discretionary criteria for granting states temporary transitional certifications of “material progress” toward compliance, or extensions of time to comply fully. But eventually, once the DHS deems the transitional period over and begins to base its decisions on full compliance, the Federal law leaves it no more discretion. States will then have to decide either to not to comply and to invalidate all the gold-star licenses they have issues during the transition period, or to comply and give all other states access to information about all state license or ID holders, including those with noncompliant cards who think they have “opted out” of national database access.

Many of the sponsors of these “opt-out” bills say they oppose the REAL-ID Act, but want to provide a “choice” for residents who “need” a REAl-ID Act compliant ID. Who exactly are these people, and why do they “need” compliant state-issued ID cards?

Nobody needs ID to fly. People fly without any ID every day. And even if the TSA changed its practices to (illegally) require travelers to show ID, and even if courts upheld such a practice as Constitutional, nobody would need a state-issued ID.  US citizens are all entitled to US passports and/or passport cards, and it’s generally easier to obtain a passport or passport card than a REAL-ID compliant state ID. A passport card valid for ten years (twice the validity of most driver’s licenses) costs $85 for a first-time applicant, $30 for anyone who has previously. That’s not much more, and in some cases less, than the cost of a driver’s license or state ID. Foreigners are entitled to passports from the country of their citizenship. Stateless people are entitled by international law to refugee identity and travel documents, which in the US are issued by the Federal government, not the states.

Does anyone need REAL-ID Act compliant state credentials to enter Federal buildings, military bases, or other Federal facilities? The DHS says no ID will be be required to enter Federal facilities to receive Federal benefits or services or exercise rights.  That covers most of the reasons most people other than employees and contractors visit Federal facilities.  For other purposes, visitors can be admitted to any Federal facility without any ID, as long as they are escorted by an employee or other person with proper credentials. As for workers, military personnel have military IDs, and Federal employees have employee IDs. All that’s left are non-employee contractors and frequent visitors who want to be allowed to enter Federal facilities unescorted. But again, US citizens are eligible for a passport or passport card, so they don’t need state-issued ID.

Who does that leave, if anyone, who “needs” a compliant state-issued ID card? Non-US citizen contractors who work at Federal facilities or visit them often on business, and want to be allowed to enter unescorted, and who the Feds haven’t chosen either to issue with any sort of contractor ID or to admit with their non-US passport, but who would be admitted unescorted — even though they aren’t US citizens — with a REAL-ID Act compliant state ID card.

These are the only edge cases of people who could make any plausible claim that they might “need” a REAL-ID Act compliant state ID.

If the Federal government really want to outsource military or other work to non-US citizen, non-employee contractors, the Federal government can and if necessary will issue these workers with Federal IDs, or stop trying to check IDs at facility entrances. And the numbers of such people certainly aren’t large enough to justify sacrificing the rights of every other resident of any state.