Apr 27 2021

DHS extends REAL-ID airport enforcement “deadline” again

The Department of Homeland Security has once again postponed its self-proclaimed “deadline” for enforcement of the REAL-ID Act at airports, this time from October 1, 2021, to May 3, 2023.

The latest postponement proves, once again, that the dates of the DHS threats to begin “enforcing” the REAL-ID Act at airports are as changeable as the dates in any of the threats made by extortionists or kidnappers. Today’s DHS press release is more like a ransom note than a legal notice: “If you get an ID we deem acceptable, we might not harass you as much when you fly, and we might allow you to exercise your right to travel.”

It remains unclear what enforcement of the REAL-ID Act at airports might mean. No law requires air travelers to have any ID, and the REAL-ID Act doesn’t change that.  The Transportation Security Administration recently posted a video showing how you can fly without ID.  But today’s DHS press release implies that the DHS is contemplating denying passage through TSA checkpoints at airports to travelers who don’t have, don’t carry, or don’t chose to show ID credentials that the DHS and TSA deem “compliant” or “acceptable”:

Beginning May 3, 2023, every air traveler 18 years of age and older will need a REAL ID-compliant driver’s license or identification card, state-issued enhanced driver’s license, or another TSA-acceptable form of identification at airport security checkpoints for domestic air travel.

Since this is a press release, not a bill proposing new legislation or a notice of proposed new regulations, it doesn’t need to say what legal basis there might be for this claim. But so far as we call tell, there is none.

The DHS recently tried to get Congress to exempt its implementaton of the REAL-ID Act from standard Federal rules notice and approval. But Congress turned down the DHS proposal for exemption of REAL-ID implementation from the Administrative Procedure Act and the Paperwork Reduction Act. The DHS has not yet begun any of the notice and approval procedures which would be required before it could impose new restrictions or requirements for air travel on the basis of the REAL-ID Act.

We expect that today’s press release will be followed by a formal rulemaking notice that merely changes the REAL-ID threat date. But such a rulemaking will neither clarify what action is really being threatened  (i.e what the TSA will really do when travelers continue to show up at TSA checkpoints without “compliant” ID), clarify what the purported legal basis would be for that action, nor, in itself, create a legal basis for any such action.

Today’s DHS press release says that the change in the “deadline” will give states and individuals more time to “comply” with the REAL-ID Act. But compliance with the REAL-ID Act was, and still is, optional for both states and individuals. What the postponement by the DHS of its self-imposed “deadline” really does is give the DHS itself more time to come up with a legal justification for its threatened actions — or to withdraw its baseless threats. It also gives Congress more time to repeal the REAL-ID Act.

Don’t be intimidated by DHS and TSA threats. Regardless of what self-imposed DHS deadlines come and go, with how many more postponements, you will still have the same right to travel without ID that you have now.

4 thoughts on “DHS extends REAL-ID airport enforcement “deadline” again

  1. I laughed when I saw the DHS story in today’s Washington Post, and I knew that Ed would follow up with an interesting comment. We’re only a few years short of the 20th anniversary of REAL-ID, and its history of contstant “failure to launch” is a hoot. It’s also a lesson in the difficulty of designing and implementing any national form of identification in the United States. Popular opposition has probably grown over the years. The latest evidence is the controversy over vaccination passports, a limited document that draws objections from all sides of the political spectrum. Any broader identification proposal is likely doomed. If REAL-ID were proposed today, it wouldn’t get out of the starting blocks. It’s a remnant of 9/11. Unfortunately, I doubt that any proposal to repeal the REAL-ID requirement would attract enough interest.

  2. Pingback: Links 28/4/2021: Red Hat Summit Fluff, Microsoft Shares Down on Results, GNU Guile 3.0.6 is Out | Techrights

  3. The “vaccine passport” controversy is blown out of proportion. With a mix of governments, airlines, cruise ships and other entities wanting vaccinated only customers/participants, this is not just a government thing.

    The irony is the focus that getting adults vaccinated solves the pandemic. Barely any mention of getting the children vaccinated (until recently in Canada where Pfizer was approved for 12-15 years old).

    Private industry is wanting to protect workers and themselves from workplace exposure.

    There are many questions that remain unanswered like how long vaccine is effective.

    So starting at aviation safety square one, the administrative search of a passenger should not be based on who that person is. The process should be strong enough to be effective. With vaccines deployed, the passport is efficient since running anti-body tests are not time efficient nor would they be cost effective. (playing Devil’s Advocate with the alternative).

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