The acting head of the Policy Office at the Department of Homeland Security (DHS) recommended that the DHS use the REAL-ID Act mandate for national sharing of drivers’ license and state-issued ID data to get access for DHS immigration enforcement to records of licenses and IDs issued to otherwise undocumented residents by states that won’t provide that data directly to the DHS, according to a DHS memo obtained by Buzzfeed News.
As discussed below, there’s a clear lesson in this report:
State refusal to participate in or upload state drivers license or ID data to the SPEXS national REAL-ID database — which necessarily implies state noncompliance with the REAL-ID Act — must be recognized as an essential element of any genuine state “sanctuary” policy against allowing state resources to be used for enforcement of Federal immigration policies and practices.
States including New York that don’t want state motor vehicle and driver licensing agencies to collaborate in Federal immigration crackdowns and other Federal witchhunts should promptly enact explicit prohibitions on SPEXS participation by their state agencies.
Here’s what that means and why it’s necessary:
According to a report by Hamed Aleaziz, the DHS considered several methods for obtaining data from “uncooperative” states or punishing those states or their residents, as the DHS is already doing to New Yorkers. But the first recommended option was to leverage the data-sharing element of state compliance with the REAL-ID Act:
A memo obtained by BuzzFeed News outlines options to put leverage on states that, like New York, deny federal immigration officials access to state driver records….
DHS policy officials led with one option that “it believes is the best option for DHS to explore to achieve the goal of acquiring DMV information that it needs to prevent the hindrance of critical Departmental operations.”
“This option, as outlined below, is to seek access to the DMV information of uncooperative states by using the database of a REAL ID compliant state,” he wrote.
States are required to “provide electronic access to all other states to information contained in its motor vehicle database” in order to be REAL ID Act compliant.
“Through this information sharing provision, DHS could seek access to DMV information for an uncooperative state by soliciting the assistance of a ‘friendly’ state, who pursuant to REAL ID Act requirements, should have access to other DMV databases.” McCament wrote they were unaware of this option being used but it “appears to be a worthwhile option” to obtain the information.
Buzzfeed News reports that the DHS memo refers to “uncooperative states” in the plural, but notes that the immediate focus of DHS retaliation has been New York.
Not mentioned in the Buzzfeed News article or the portions of the DHS memo it quotes is that New York — like more than half of the states and territories subject to the REAL-ID Act — is not in compliance with the data-sharing provision of the REAL-ID Act, which would require participation in the SPEXS national ID database. aggregated from state data. The confusion is understandable in light of the fact that the DHS has, for its own unknown reasons, chosen to certify as “compliant” with the REAL-ID Act many states, including New York, that do participate in SPEXS and cannot possibly be considered to be in compliance with the data-sharing provision of the REAL-ID Act.
It appears that the head of the DHS Policy Office, reading the REAL-ID statute, assumed that it was being implemented by the DHS as written, and didn’t realize that other DHS officials had arbitrarily and illegally chosen to completely disregard the statutory data-sharing compliance provisions when making decisions to certify state “compliance”.
However, for states that are actually compliant with the REAL-ID Act, any compliant state must share data on all state-issued drivers licenses and IDs, including “noncompliant” licenses and IDs and those issued to otherwise undocumented state residents. People who obtain a “noncompliant” license or ID may think they have opted-out of the REAL-ID Act, but they have not. The state must share and upload pointers to those “noncompliant” licenses and IDs to SPEXS if it wants to be in actual compliance with the REAL-ID.
The DHS memo quoted by Buzzfeed News suggests using cooperative states to obtain data shared by uncooperative states. But for SPEXS participant states, that wouldn’t be necessary. The SPEXS national ID database has been outsourced to a nominally-nongovernmental contractor, the American Association of Motor Vehicle Administrators (AAMVA). For states that participate in SPEXS, the Feds could get license and ID data with a national-security letter from AAMVA and/or AAMVA’s contractor, without even needing to go through another state, and without any state even knowing about it.