The Transportation Security Administration (TSA) has again backed down from its decades-old threats to start requiring all airline passengers to show ID that the TSA deems to be compliant with the REAL-ID Act of 2005. But the new rules proposed by the TSA would create new problems that won’t go away until Congress repeals the REAL-ID Act.

In a notice published in the Federal Register on September 12th , the TSA has proposed another two-year postponement of the most recent  of the “deadlines” the agency has imposed on itself for REAL-ID enforcement.  But that postponement would be combined  with interim rules for the next two years that ignore the law and invite arbitrariness in how travelers are treated.

The TSA notes that “frustrated travelers at the checkpoint may also increase security risks” if the TSA stopped allowing travelers to fly without REAL-ID. But the TSA doesn’t mention its current procedures for flying without any ID or its position in litigation that no law or regulation requires airline passengers to show any ID. Instead, The TSA claims without explanation that without this postponment, “individuals without  REAL ID-compliant DL/ID or acceptable alternative would be unable to board federally regulated aircraft.”

Comments from the public on the proposed rule are due by October 15, 2024. Dozens of comments have already been submitted, almost all of them opposing requiring REAL-ID to fly.

We’ll be submitting comments opposing the proposed rules and reminding the TSA that (1) no state is yet in compliance with the REAL-ID Act, which would require sharing of driver and ID databases with all other states, and (2) neither the REAL-ID Act nor any other Federal law requires air travelers to have, to carry, or to show any ID.

Unless the law is changed to try to impose an unconstitutional ID requirement as a condition on the right to travel by common carrier, the TSA must continue to recognize the right to fly without ID. Any distinction by the TSA or other Federal agencies between state-issued ID, when no state complies with the REAL-ID Act or could do so until all states participate in the national REAL-ID database (SPEXS), would be arbitrary and unlawful.

The TSA is proposing what it describes as phased enforcement of the prohibition on acceptance by Federal agencies (in circumstances, which don’t include travel by common carrier, in which the law requires individuals to show ID) of ID that doesn’t comply with the REAL-ID Act.

Under the rules proposed by the TSA, full enforcement of the REAL-ID Act would be postponed by another two years, from the previous arbitrary deadline of May 7, 2025, to a new and equally arbitrary deadline (subject to further postponments) of May 5, 2027.

In the interim, the rules proposed by the TSA would authorize the TSA itself and all other Federal agencies to engage in graduated enforcement measures against individuals who don’t have ID the Department of Homeland Security (DHS) deems to be compliant with the REAL-ID Act

The TSA suggests that graduated enforcement measures might include the creation of new databases tracking the use of “noncompliant” ID, on the basis of which agencies would limit the number of times an individual could enter a Federal building or engage in other activities without  showing “compliant” ID. But the TSA woud leave it to agencies’ discretion to decide what conditions to impose on use of noncompliant ID.

These graduated enforcement policies would determine who is, and who is not, able to exercise Federally-protected rights. Contrary to the Administrative Procedure Act (APA), those policies would not be specified in regulations published in the Federal Register. They would be adopted by individual agencies without prior notice or comment.

Even if the REAL-ID Act had authorized the TSA to delegate to other Federal departments authority to issue agency-specific REAL-ID enforcement rules, which it didn’t, those regulations would be subject to the APA. The TSA asked Congress to exempt REAL-ID Act implementation from the APA and the Paperwork Reduction Act (PRA), but Congress declined to enact those exemptions.

In its latest Notice of Proposed Rulememaking (NPRM), the TSA acknowledges that the PRA and the Privacy Act  would require agencies to publish Federal Register notices and obtain approval by the Office of Management and Budget (OMB) for new databases and collection of information about users of noncompliant ID. But the  TSA doesn’t mention the APA. It acts as though Congress approved the APA exemption it rejected for REAL-ID rules.

The TSA’s latest notice doesn’t mention the agency’s most recent previous proposal related to REAL-ID, which would have authorized the use of smartphone traveler-tracking apps as an alternative to REAL-ID drivers license or ID cards. That proposal hasn’t been finalized, but additional background information was disclosed last month, perhaps indicating preparations by the TSA for a new round of comments on that proposed rule.