Plans for a national identification system may have run into an obstacle—state governments
The slight, short Ginny Lewis doesn’t seem all that fierce, but she gave it to state legislators right between the eyes."The frustration from our customers will be unprecedented,” Lewis said. “DMVs across the country will exemplify bureaucracy at its finest.”
Lewis, director of the Nevada Department of Motor Vehicles, was giving members of the budget committees of the Nevada Legislature a warning about a federal law that threatens to overwhelm her agency. Normally, cautious language is used before legislative committees. But Lewis did not sugarcoat anything. The DMV will have to add 200 workers, all of whom will have to undergo security and credit checks, she said. DMV offices will be flooded with “confused and frustrated” citizens. New equipment will be needed. And it will all be expensive.
“I don’t think a state in this country can implement it,” Lewis said.
What will cause all this is U.S. Public Law 109-13, originally known as the “Real ID Act of 2005” until it became an amendment to another bill.
It mandates major new federal requirements for state driver’s licenses and for the physical form of those licenses. Citizens will have to produce documents they may not have seen in years, if they have them at all. In addition, by standardizing all state driver’s licenses, the new law effectively creates something that privacy advocates had long prevented—a national identification card.
When people apply for driver’s licenses or renewals or state identification cards, they will have to produce documentation that has become much more difficult to obtain since Sept. 11, 2001. They will have to appear in person at the DMV. And the licenses they get will have to bear “facial recognition” photos and their home addresses—requirements that have domestic abuse counselors and privacy advocates up in arms. The law will also roll back progress on Nevada’s program to get people to do DMV business online.
Nevada Assembly Speaker Barbara Buckley says state lawmakers will be making contact with their counterparts in other state legislatures around the nation to see if there is an appetite to jointly defy Congress on the issue. “I think that’s one of the things that we’re going to be looking at and, you know, doing a survey of how many states are doing that, how many states are planning to do that to see if it could be some sort of orchestrated front. … It’s a bit of a gamble.”
What gives Congress the authority to decide how state governments operate their DMVs? It’s a subject of some debate. Interstate commerce is the usual justification, along with federal highway funds. But the U.S. Supreme Court, in a series of cases, has been steadily narrowing federal authority to use these catch-alls. In one case, Chief Justice William Rehnquist wrote of Congress’s sweeping claims of authority: “If we were to accept the government’s arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.”
But the departure of Rehnquist, who was the most forceful opponent of federal authority, may have changed the political dynamics on the issue.
State legislatures are in a more powerful position than they realize, if they defy the federal law. After May 11, 2008, the law says, federal agencies “may not accept, for any official purpose, a driver’s license or identification card issued by a State to any person unless the state is meeting the requirements” specified by the Real ID law.
Imagine Social Security offices refusing applications for benefits from elderly retirees or military recruiters unable to accept enlistees or federal inspectors refusing to permit people to go through airport security or the Veteran’s Administration unable to provide vet’s benefits. The public anger with federal agencies refusing such services would fall on Congress like a sledgehammer. The threat of that kind of chaos is the strongest weapon state governments have, but so far they have not shown the inclination to use it by refusing to comply with Real ID.
Obtaining required documents may not be the easiest thing to do—after Sept. 11, restrictions on things like birth certificates and Social Security cards became much tougher. From a citizen’s viewpoint, Officialdom made it more difficult to obtain birth certificates and other documents and then Officialdom made citizens obtain those documents in order to function in society.
Among older citizens who recall the days when Social Security cards bore the legend “For social security and tax purposes—not for identification,” and people were counseled not to even bother retaining the cards, obtaining a new one will be an adventure in post-9/11 bureaucracy.
Across the nation, as the time draws nearer for state officials to implement the federal mandate, state legislatures are upset—but are generally approving only non-binding resolutions which put little pressure on Congress. They are not refusing to implement the law.
State governments are required to make the transition to Real ID by May 11, 2008. In Nevada, that means the legislature must act on it during the current session because it won’t meet again until 2009. A handful of states are already more or less in compliance, though not because of Real ID—they did it because of earlier anti-immigrant measures.
Maine Rep. Scott Lansley, a Reagan conservative, has introduced a measure to refuse implementation. “This will be model legislation for the country,” he said. But so far, the Maine Legislature has approved only a resolution opposing Real ID.
There is major grassroots opposition—entire blogs, such as RealIDsucks.blogspot.com are devoted to the law. American Civil Liberties Union chapters in Georgia, Hawaii, Maine, Massachusetts, Missouri, Montana, New Hampshire, New Mexico, Oklahoma, Vermont, Washington and Wyoming are lending a hand to try to stop the law.
Some legislators have found themselves torn between competing issues—distress at a federal government usurping state government authority in another field on one hand, say, and steps to curb illegal immigration on the other. In Colorado, according to the state government news site Stateline.org, Sen. Andy McElhany of El Paso County supported toughened DMV identification requirements for immigration-related reasons, then discovered that his daughter’s passport was no longer enough documentation for her to get a learner’s permit. So many people in that state ran afoul of what are reputed to be the toughest requirements in the nation that a citizen lawsuit produced an injunction that halted enforcement of the requirements.
Real ID is a true product of congressional bipartisanship—sponsored by Republicans in 2005 and acquiesced to by Democrats.
It was originally a free-standing measure, House Resolution 418. Its sponsors could not get it enacted on its own merits, so they attached it to H.R. 1268, a must-pass military spending bill. That tactic allowed supporters to argue that if Democrats failed to vote for it, they were undercutting U.S. troops.
Even then, some Democrats wanted to fight it, but U.S. Sen. Harry Reid of Nevada, the Democratic floor leader, refused to lead a floor fight ("License denied,” RN&R, May 10, 2005). When he was approached by fellow Democrats wanting to stop Real ID, Reid said, “Get real. It’s not going to happen. It’s a defense bill.” Once the Democrats caved in, the measure passed easily.
Later, in a July 6, 2005, interview with the RN&R, Reid said he was unwilling to have the issue used to put Democrats at a political disadvantage.
“We have danced this tune before,” Reid said. “On homeland security … in 2004 we felt that the homeland security bill as written was wrong, we needed some improvements in it, we held that bill up for some time. As a result of that, because we wanted perfection rather than good, we ended up losing [Georgia U.S. Sen.] Max Cleland and a number of other senators.”
On Real ID, Reid said, “This was not a time to filibuster a bill that was providing the money for the troops. There’s no question about that. First of all, we wouldn’t have gotten enough money to do it and as I told this senator, get real. The REAL ID bill was placed in that bill because they knew that was the only way they could get it passed through the Senate.”
Every member of the Nevada congressional delegation—Reid, Jim Gibbons, Jon Porter, Shelley Berkley and John Ensign—voted for the measure with its Real ID rider. Now Gov. Gibbons must find the money to pay for the program supported by Rep. Gibbons. He has recommended $30 million.