But somewhere in the sausage-making that saw the REAL-ID Modernization Act and numerous other unrelated measures inserted into the 2,124-page omnibus pandemic relief and appropriations bill, the key provisions sought by the Department of Homeland Security (DHS) were removed from the final bill.
That leaves the DHS still required by existing Federal laws to respond to our objections, to request and obtain approval from the White House Office of Management and Budget (OMB), and to post OMB-approved notices at TSA checkpoints explaining what is required, and on what legal basis, before it can try to deny anyone passage through a checkpoint or travel by common carrier on the basis of their failure or refusal to show ID.
As introduced in July 2020, the REAL-ID Modernization Act would have exempted promulgation of REAL-ID regulations and administration of the REAL-ID Act by the DHS from the requirements of the Paperwork Reduction Act (PRA) for prior approval by OMB and posting of OMB-approved notices for any collection of information from the public, and the requirements of the Administrative Procedure Act (APA) for public notice and opportunity to comment on proposed regulations.
The Senate committee report uncritically repeated the DHS lie that “by March 26, 2019, 52 states and territories were in compliance… [E]very state and territory is in compliance with the REAL ID Act or on a path to compliance.” In fact, as of today only 30 of the 55 states and territories subject to the REAL-ID Act — still not including any of the most populous states — are participating and have uploaded information about all drivers licenses and ID cards to the SPEXS national ID database, as is necessary to meet the statutory REAL-ID compliance requirement for nationwide electronic sharing of this data.
The Senate committee report glossed over the PRA and APA exemption provisions of the bill, saying only that, “Subsection (d) allows the Secretary to promulgate rules and regulations needed to carry out the bill.” That’s disingenuous at best. The Secretary of Homeland Security already had the authority to promulgate regulations to implement the REAL-ID Act, and had done so. The sole purpose of Subsection (d) of the REAL-ID Modernization Act, which one wouldn’t guess from the committee report, was to exempt REAL-ID rulemaking and administration from the PRA and the APA.
Despite this effort to hide the real agenda of the DHS and the bill’s sponsors, someone must have read the text of the bill and figured out what it meant. Subsection (d) was omitted when the the REAL-ID Modernization Act was incorporated into the Consolidated Appropriations Act of 2021 as Title XI, Section 1001 of that Act.
But why did the DHS and its friends in the Senate care so much about the PRA and the APA? And what does the failure of their attempt to exempt REAL-ID Act implementation from the PRA and APA mean for REAL-ID Act implementation in the months ahead?
The foremost goal of the DHS has always been to avoid public scrutiny and judicial review of its practices and the legal basis (or lack thereof) for them. Neither the PRA not the APA impose much of a substantive constraint on the activities of Federal agencies. But they are the principal statutory expression of Constitutional principles of agency due process, and the principal source of statutory requirements for prior and on-site public notice and published administrative approval for government demands for information and the rules that govern collection and use of that information.
As such, the PRA and APA are anathema to a lawless agency such as the DHS which is committed to acting on the basis of arbitrary administrative “discretion” or secret and changeable-at-will internally-defined procedures, rather than publicly disclosed rules.
The DHS has conducted the public notice-and-comment rulemaking required by the APA only when ordered to do so by the courts in response to lawsuits by pubic-interest groups.
As we’ve explained in posts in this blog over the years, and in gory detail in our latest joint comments to the TSA with other civil liberties and travel-rights organizations, the TSA has been collecting information illegally from air travelers without ID, using an illegal unapproved form and without posting the notices required by the PRA, for more than a decade.
In 2016, the TSA gave notice of its intent to finally request belated approval from OMB for its ongoing, illegal, interrogation of travelers. We objected, as did many others. The TSA never followed through with its planned submission to OMB (which would have required a second public notice and opportunity for the public to submit comments, this time to OMB rather than the TSA). Instead, after waiting more than three years, the TSA decided to “re-start” the process in May 2020, perhaps in hope of being able to ignore the objections raised in 2016 behind it if the original commenters didn’t re-submit them.
When even more objections were raised to the renewed May 2020 proposal, the DHS and TSA — rather than responding to the public comments — tried to get Congress to give them permission to put their ID-to-fly plans into effect without having to respond to the public comments, obtain OMB approval, or give notice of what they plan to do.
This was the source of the PRA and APA exemption provisions in the REAL-ID Modernization Act. We’re flattered that the DHS and TSA found our objections so threatening that they tried to get the law changed to avoid having to even go through the motions of considering or responding to our comments, or telling the public what they plan to do.
Now that the REAL-ID Modernization Act has been enacted without the PRA and APA exemptions, the DHS and TSA have little choice but to move forward again with their request for OMB approval and possibly APA notice-and-comment rulemaking , if they still want to try to impose an ID requirement for air travel in October 2021.
Stay tuned for an interesting year ahead for advocates for the right to travel.