Today the Identity Project joined almost 8,000 individuals who have filed comments with the Transportation Security Administration opposing the TSA’s latest bizarre proposal for  decentralized, nonstandard, selective enforcement of the REAL-ID Act of 2005.

The introduction to our comments summarizes our objections as follows:

By this NPRM [Notice of Proposed Rulemaking], the Transportation Security Administration (TSA) proposes to grant to itself and to delegate to other agencies… authority to establish rules (“phased enforcement plans”) governing who is, and who is not, under what conditions, allowed to access Federal facilities or exercise Federally-recognized rights including the right to travel by air by common carrier. These rules could be adopted by the TSA and other agencies without notice, public comment, publication in the Federal Register, or codification in the Code of Federal Regulations (CFR). Instead of standards for the acceptance of IDs, the TSA is proposing to delegate authority to itself and other agencies for decentralized and nonstandard acceptance or rejection of noncompliant IDs. Congress has given the TSA no such authority.

This NPRM is premised on erroneous explicit and implicit legal and factual findings, including claims that some or all states and territories have complied with the requirements of the REAL-ID Act of 2005 and that airline passengers are required to have, carry, and/or show ID. These findings are arbitrary, capricious, contrary to law, and not entitled to deference.

Compliance with the REAL-ID Act requires a state to electronically share information concerning all driver’s licenses and state-issued IDs with all other states, but not all states do so.

Because no state complies with this provision of the REAL-ID Act, or could do so unless and until all states do so, no state-issued driver’s licenses or ID cards comply with the REAL-ID Act. No state is currently able to issue licenses or IDs that comply with the REAL-ID Act….

The proposed rules exceed the authority of the TSA. They would violate the Administrative Procedure Act (APA) and rights including the “public right of transit” by air.

Pursuant to the APA, neither the TSA nor any other agency has the authority to issue rules through the procedures contemplated by the proposed rules. And the REAL-ID Act does not authorize the TSA to delegate the promulgation of implementing regulations to other agencies or departments. Neither the TSA nor any other agency has the authority to issue regulations rescinding the statutory and Constitutional right to travel by air…

The proposed rules must be withdrawn in their entirety.

With respect to the right to  travel and to fly without ID, we comment as follows:

The proposed rules purport to impose a new ID requirement for airline passengers. According to the NPRM, “absent a phased enforcement plan, individuals without a REAL ID-compliant DL/ID or acceptable alternative would be unable to board federally regulated aircraft upon card-based enforcement.”

While flight crew members might need to present pilot’s licenses or other ID to board aircraft…, passengers do not. The claim in the NPRM quoted above would be true if and only if the TSA intended, through these proposed rules, to impose a new requirement for ID for air travel, expanding the requirement for ID to board airline flights from flight crews to passengers. Such a regulation imposing a new ID requirement is not authorized by the REAL-ID Act.

In litigation, the TSA has consistently and explicitly recognized that airline passengers are not required to show ID or to identify themselves. They have a choice of showing ID or submitting to a more intrusive search.

The 9th Circuit Court of Appeals described the TSA’s identification policy as follows in Gilmore v. Gonzales, on the basis of the TSA’s own ex parte, in camera submissions:

“The identification policy requires airline passengers to present identification to airline personnel before boarding or be subjected to a search that is more exacting than the routine search that passengers who present identification encounter….

“Gilmore had a meaningful choice. He could have presented identification, submitted to a search, or left the airport. That he chose the latter does not detract from the fact that he could have boarded the airplane had he chosen one of the other two options.” (435 F.3d 1125 at 1139)

This decision was issued in 2006, based on submissions to the Court of Appeals by the TSA after the enactment of the REAL-ID Act of 2005. If the TSA believed that the REAL-ID Act itself had removed the option of submitting to a more intrusive search, and had imposed a new requirement for airline passengers to show ID, it could and should have made this claim in its submissions to the 9th Circuit in Gilmore v. Gonzales. It did not do so, presumably because it recognized that the REAL-ID Act had not imposed such a requirement.

The REAL-ID Act did not remove the option for airline passengers of not showing ID and submitting to a more intrusive search. The TSA may not, by regulation, remove this option.

REAL-ID Act standards for acceptance of ID by Federal agencies apply to those airline passengers who choose the option of showing ID and having it “accepted”, not to those who choose the alternative of not showing ID (or having ID accepted) and instead submitting to a more intrusive search. We would object to any statutory or regulatory provision requiring all airline passengers to show ID to fly as unconstitutional and in violation of the right to travel, but the REAL-ID Act neither imposed nor authorizes such a requirement.

Travel by common carrier is a right, and the TSA has not authority to promulgate regulations conditioning the exercise of this right on a waiver of other rights.

The TSA knows that states haven’t complied with the REAL-ID Act, and aren’t about to. It also knows that trying to stop airline passengers from flying without ID would prompt resistance, civil disobedience, and litigation.  But neither the TSA nor Congress is willing to admit that the REAL-ID Act was a bad idea from the beginning and should be repealed. This proposal is the TSA’s misguided and unlawful attempt to escape that dilemna.

You can submit your own comments on this TSA proposal until midnight Eastern Time on Tuesday, October 15, 2024