On September 1, 2017, the California Department of Motor Vehicles quietly published a notice of proposed regulations that would purportedly allow the California DMV to issue drivers licenses and state ID cards that would be “compliant” with the Federal REAL-ID Act of 2005:

• Notice of Proposed Action
• Initial Statement of Reasons
• Proposed Regulatory Text
• Proposed “Exception Process Application Form” (not posted by the DMV but provided to us by the DMV on our request)

For many years, the California DMV has appeared intent on eventual “compliance” with the REAL-ID Act, regardless of whether that compliance was authorized by the legislature. The current DMV rulemaking proposal to bring California into “compliance” with the REAL-ID Act by administrative fiat is the latest and most significant step along that path, and a disturbing effort to bypass legislative debate.

We encourage all Californians who are concerned about freedom of movement, Federal commandeering of state agencies to function as agents for enforcing Federal restrictions on individual rights, and lack of transparency, oversight and accountability for biometric and ID databases to submit comments opposing the proposed regulations and, if you can make it to Sacramento, to testify at the hearing on October 16th.

The DMV will accept written comments on its proposal until 5 p.m. PDT on Monday, October 16, 2017.  Written comments should refer to “Office of Administrative Law File number File Number 2017-0822-06” and should  be addressed to:

Brian G. Soublet, Chief Counsel/Deputy Director
Department of Motor Vehicles
Legal Affairs Division
P.O. Box 932382, MS C-244
Sacramento, CA 94232-3820

phone: 916-657-6469
fax: 916-657-6243

e-mail: LADRegulations@dmv.ca.gov

The DMV will also hold a public hearing on this proposal in Sacramento on Monday, October 16, 2017,  beginning at 10 a.m. PDT. “The public hearing will conclude when all attendees who wish to comment have provided their comment. If necessary, the department reserves the right to limit the length of time each participant has to comment.” The hearing will be held at:

October 16, 2017, 10:00 a.m. PDT

Sierra 2 Center
Curtis Hall
2791 – 24th Street
Sacramento, CA 95818

California’s state legislature has enacted some specific changes intended to facilitate eventual compliance with the REAL-ID Act, should the state so choose. But neither California nor Federal law contains any “requirement” that California comply with the Federal REAL-ID Act. Nor could they Constitutionally impose any such requirement.

The REAL-ID Act purports to authorize certain Federal sanctions against residents of states that don’t choose to take certain actions. But states are free to choose whether or not to take those actions. The REAL-ID Act does not, and cannot, require states to do anything.

Any attempt to conscript states to carry out Federal actions would violate the U.S. Constitution. If the Federal government tries to commandeer state resources for purposes of which state residents disapprove, or to punish state residents or interfere with their exercise of their rights as a way to indirectly coerce the state government to do what the Feds what, states can and should stand up for their residents by challenging those Federal actions — as California has done, successfully, on other issues such as use of state resources to enforce Federal immigration laws.

No California statute authorizes the regulations currently being proposed by the DMV. And legislation to authorize compliance by the state with the REAL-ID Act would probably violate Article 1 (declaration  of rights) and Article 19 (motor vehicle revenues) of the California state constitution.

The Feds’ big threat is that if California doesn’t “comply” with the REAL-ID Act, the TSA will prevent Californians from passing through TSA checkpoints or boarding airline flights unless they have passports or some other Federally-issued ID. But in reality, no current or proposed law or regulation or court opinion requires air travelers to show any ID at all, or authorizes the TSA to deny passage to people without ID. Records disclosed by the TSA in response to our FOIA requests show that hundreds of people pass through TSA checkpoints and board domestic airline flights every day without showing ID.

The DMV’s analysis of its proposal claims that the proposed new and additional requirements would have no impact on small businesses (despite the fact that millions of Californians who hold state drivers licenses or ID cards are sole proprietors) and would impose no cost or other burden on individuals (despite the cost, delay, and in some cases impossibility of obtaining the additional documents that would be required to obtain or renew a state ID or drivers license).

The DMV falsely claims that the changes to regulations it is proposing would enable California to “comply” with the REAL-ID Act. But that is clearly false. As we have pointed out in our testimony to legislatures in other states (Alaska, Minnesota, etc.), the most important, costly, and objectionable element of state “compliance” with the REAL-ID Act is that a “compliant” state must share its drivers license and ID database with every other state. The REAL-ID Act is about the database. The physical specifications for drivers licenses and ID cards are a side issue.

Because of the explicit requirement in the REAL-ID Act for data sharing with every other state, no state can actually “comply” with the Federal  law unless and until all states have uploaded their state ID databases to the national ID database being built by a private contractor. Only a small minority of states (click on the “participation” tab for a map) are participating in the SPEXS database. As a result, no state is yet, or can be, compliant with the REAL-ID Act. The California DMV has no publicly-disclosed plan or intent, no authorizing legislation, and no funding for participation in this national ID database or full compliance with the REAL-ID Act. The state legislature should debate these issues before, not after, the DMV revises its regulations or uploads Californians’ data to SPEXS.

These are just some of the issues that are apparent on first reading of the DMV proposals. We’ll be submitting written comments to the DMV and testifying at the public hearing. We’ll post our comments for others to use as a template or for ideas.