Nov 21 2016

TSA proposes to require ID to fly

Reversing its longstanding official position that no law or regulation requires air travelers to possess or show any ID credentials, the TSA has given notice of a new administrative requirement for all airline passengers:

In order to be allowed to pass through checkpoints operated by the TSA or TSA contractors, air travelers will be required to have been issued a REAL-ID Act compliant government-issued ID credential, or reside in a state which has been given an “extension” by the DHS of its administrative deadline for a sufficient show of compliance with the REAL-ID Act of 2005.

The TSA will still have a procedure and a form (TSA Form 415) for travelers who don’t have their ID with them at the checkpoint, typically because it has been lost or stolen or is in the process of being replaced or renewed. But that procedure will no longer be available to people who have ID from states the DHS hasn’t certified as sufficiently compliant with the REAL-ID Act, or who haven’t been issued any ID at all and who reside in noncompliant states (or outside the U.S).

To fly without showing ID, travelers will have to sign an affirmation that they have been issued a “compliant” ID (even if they don’t have that ID with them), or that they reside in a state that has been given an extension of time by the DHS for REAL-ID Act compliance.

The new TSA administrative policy requiring air travelers to certify that they have been issued with government ID credentials is not embodied in, or based on, any statute or regulation. Instead, it was buried in a “Paperwork Reduction Act” notice¬† issued on November 3rd and published in the Federal Register on Election Day. It was adopted neither by act of Congress nor through formal agency rulemaking, but by TSA decree. The notice cites no purported statutory authority for the new requirement. It is unlawful, violates fundamental rights, and should be rescinded.

If it is not reversed, it should be resisted: Resisted by travelers who refuse to carry or show ID at TSA checkpoints, resisted by plaintiffs in the Federal litigation against the TSA and its agents and contractors which will inevitably ensue, and resisted and challenged in litigation by states whose residents’ rights are violated because they have not been sufficiently submissive or compliant with Federal desires for their states to participate in a national ID database.

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