At a moment in congressional history when passing even the narrowest of legislation seems all but impossible, the REAL ID Act is a reminder that, even now, the country's leaders can sneak far-reaching schemes into law like contraband onto an airplane.
Last week, on Friday, Jan. 11, the Department of Homeland Security released its complete explanation of how federal agencies will implement the national identification law Congress passed in 2005. The much-awaited regulations do little to mitigate either REAL ID's logistical problems or its civil liberties concerns. Nor do they offer states significant relief in meeting the feds' looming deadlines on turning their big idea into a day-to-day reality for Americans.
As a result, REAL ID remains a hugely complicated, top-down undertaking that, to civil libertarians, brings America ever closer to a check-point society and, to immigrant-rights advocates, shoves millions of migrants further into the margins. Moreover, it has set up a high-stakes standoff between the feds and more than a dozen states that are refusing to play along.
Significantly, legislators spent little time considering REAL ID's dirty details while shuffling it along from notion to law.
It began as a stand-alone offering from Rep. James Sensenbrenner, R-Wis., which he introduced in January 2005, back when Republicans controlled both houses of Congress. Sensenbrenner's bill passed with little debate in a partisan 261-161 vote on Feb. 10, 2005. It then moved to the Senate Judiciary Committee, where tough constitutional questions are supposed to be weighed. But rather than openly debate the merits of a national identification system, the committee shelved Sensenbrenner's bill, and it sat lifeless for months.
The idea was reanimated-again with little discussion-when legislators slipped it into a May 2005 emergency-spending bill to fund the wars in Afghanistan and Iraq. The spending bill passed easily, carrying REAL ID with it, first on a 368-58 vote in the House and then winning unanimous final approval in the Senate. REAL ID became the law of the land-leaving everyone wondering exactly how this grand scheme would unfold in the real world.
It remains difficult to determine whether the law is workable; it will at the least be a nightmare to implement. What is clear is that, as the law now stands, people who seek driver's licenses will soon be required to demonstrate proof of citizenship or of immigration status. Non-citizens without documentation will be barred from obtaining a license altogether.
States that have not filed for a deadline extension will have to adopt the new license standards by May. Those that have asked for a reprieve get until Dec. 31, 2009, to make the change. And last week's Homeland Security regulations allow states to seek one more deadline extension, which would give them until May 11, 2011. Most experts predict delays all across the board, even among those states that are already frantically preparing.
But a broad swath of states is simply refusing to participate-17 legislatures have passed bills rejecting REAL ID. Which sets up potential chaos: People from states that have refused to comply will, in theory, have to either obtain a U.S. passport or be denied access to all federal premises. They will not be able to use their existing licenses to obtain federal benefits like Social Security. And, since air travel is guarded by the federal Transportation Security Administration, they will be barred in many cases from commercial flight.
The good news is that none of this is very popular. Last summer, Montana Democratic Sens. Jon Tester and Max Baucus introduced an amendment to the immigration reform bill that would have left REAL ID largely defanged. The amendment passed by a narrow margin, but it died along with the larger bill when the immigration fight exploded. Separate legislation exists in both the House and Senate to repeal the act, but it has languished since the beginning of 2007.
Adding fuel to the fire, in December, Congress allocated a mere $50 million to Homeland Security for helping states achieve REAL ID compliance. Such a pittance will mean great and unwelcome costs at the state level, likely prompting further revolt. "
If other states just say heck no, then we'll be in a pretty good condition," says ACLU legislative council Tim Sparapani. "I imagine state attorney generals could file suit against it. Or it could die on the vine." That would take a critical mass of states refusing to participate, forcing it to be largely ignored. But that would also leave the law on the books, where it could be used for all manner of selective enforcement and abuse.
So the battle over this bright idea is far from over. It may even prompt Congress to finally have a meaningful debate about whether it should be law at all.
