Stumbling into the embrace of the homeland-security state, California’s state legislature has sent to Governor Jerry Brown a bill which, unless the Governor vetoes it by October 11th, will require that:

[T]he Department [of Motor Vehicles] shall require an applicant for an original driver’s license or identification card to submit satisfactory proof of California residency and that the applicant’s presence in the United States is authorized under federal law.

A.B. 1465 is unnecessary, would create severe problems for many Californians, and would discourage both immigrants to the US and residents of other states from moving to California.

As our friend Jim Harper of the Cato Institute has noted, the intent of  A.B. 1465 appears to be to make it easier for the DHS to claim that California is making “progress” toward compliance with the REAL-ID Act.

Why would Californians want that?

The DHS has repeatedly threatened that if states don’t comply with the REAL-ID Act, including connecting their state drivers license and ID databases to the outsourced REAL-ID “hub” operated by the AAMVA, residents of those states won’t be allowed through Federal checkpoints at airports and at entrances to Federal facilities.

But as we discussed here and here and in this presentation at Cato earlier this year, these threats are hollow.

The TSA allows people to fly without ID every day, despite false notices in airports that ID is required.

As for access to federal buildings, the DHS says that “REAL-ID does not apply to … applying for or receiving Federal benefits, … accessing hospitals and health clinics…, or constitutionally protected activities.”

We’re not sure why else ordinary people would want to access most Federal facilities.

In addition, REAL-ID Act restrictions on “acceptance” of drivers licenses and other state IDs issued by “non-compliant” sates would apply only at those Federal facilities that have been assigned a specified “Federal Security Level” (FSL). We’ve bene unable to identify any such facilities.

In response to our FOIA requests, the DHS has withheld almost all of the details regarding these FSLs.  The limited information disclosed by the DHS shows that the classification scheme is designed to protect Federal facilities as much against lawful political protest as against terrorism.  But in response to our FOIA requests, multiple DHS components and other responsible Federal agencies have to date identified no record that any of a long list of high-profile potential terrorist targets in California — the Golden Gate and San Francisco-Oakland Bay Bridges (both of which pass through Federal reservations), the U.S. District Court and 9th Circuit Court of Appeals courthouses, etc. — have been assigned an FSL.

The only agency which admitted to having even considered assigning an FSL was the Presidio of San Francisco (which includes the south end and southern approaches to the Golden Gate Bridge).  No FSL has actually been assigned to the bridge or any other portion of the Presidio, and a committee to consider the issue was only created in direct response to our FOIA request.

While the DHS threats that appear to have provided the excuse for A.B. 1465 are largely, perhaps entirely, toothless, the problems the bill would cause for California residents — especially but not exclusively new Californians — would be serious.  The bill is silent on what would constitute evidence of “California residency and that the applicant’s presence in the United States is authorized under federal law”, and on
what standard of “proof” would be required. It would be up to the DMV to decide what this means

We didn’t receive “authorization” to move to California from other states. Did you? Did anyone?  How would we satisfy our burden of showing such “authorization”?  And what about native Californians? We thought our right of residence anywhere in the USA was one of our human rights as US citizens, not dependent  on any “authorization” from the government.

“Proof of California residency” could be equally, if not more, problematic.

It’s often said that California is a state of mind, and there’s more truth to that statement than you might think. There’s an explicit mental element of “intent” to the legal definition of California residency.

If you’ve just moved to California, how can you “prove” to the DMV that you are “present in California for other than a temporary or transitory purpose” or that you have “a present intention of making it your true, fixed, permanent home and principal establishment… the place where, whenever you are absent, you intend to return.”  Can DMV staff possibly be qualified to make such judgments? How will they do so?

New Californians will have to come up with the requisite proof of residency quickly, or they won’t be able to drive.  Most states allow new residents to continue to use a drivers license from another country or another state for at least 30, and in some case as much as 90, days. California has the strictest drivers license rule in the country for new residents, requiring them to get a California license within 10 days of their arrival.

Imagine that you’ve moved to California less than 10 days ago from another state in search of work, or have just arrived in California as a lawful immigrant.  You might be sleeping in your car, couch surfing with friends or family, or renting temporary space in someone else’s home through AirBNB.  Finding a job is probably a higher priority than finding a permanent place of residence. Even if you already have a job, finding a permanent home in the current California housing crisis can take more than 10 days.

In the meantime, what proof of your California residence will the DMV demand? What will you be able to present?  And if you can’t, will you be able to keep that job that brought you to California if you can’t drive?

California doesn’t need these problems.

Also approved by the California legislature and now on Governor Brown’s desk is S.B. 249, which would authorize the DMV to begin issuing drivers licenses and state ID cards “enhanced” with long-range RFID chips.  The DHS considered but rejected requiring RFID chips in REAL-ID compliant drivers licenses, although the State Department embeds short-range RFID chips n passports and long-range RFID chips in “passport cards“.  (Not surprisingly, the State Department FAQ on the difference between passports and passport cards doesn’t mention the difference in RFID-chip range.)

If Governor Brown allows S.B. 249 to become law, “enhanced” RFID-chipped California drivers licenses and state ID cards would be an option for California residents who request them. These “enhanced” state-issued ID cards would be accepted by US authorities as an alternative to a passport for US citizens crossing the US-Mexico and US-Canada borders by land (not by air).  But that’s not much of a benefit, since anyone who wants a card-sized RFID-chipped travel credential for those purposes can get a passport card that’s valid for the same purposes (and for other federal checkpoints such as in airports and at federal facilities) for 10 years, even if the holder changes their residence to another state. There’s no reason for the state to join the Feds in issuing long-range radio tracking beacons to California residents.

Tell Governor Brown to veto A.B. 1465 and S.B. 249 before October 11th, when both these bills will otherwise become law without the Governor’s signature.