REAL ID Act Totally Explained

Everything about The Real Id Act totally explained

The REAL ID Act of 2005 is U.S. federal law which imposes certain security, authentication and issuance procedures standards for the state driver's licenses and state ID cards, in order for them to be accepted by the federal government for "official purposes", as defined by the Secretary of Homeland Security. Currently, the Secretary of Homeland Security has defined "official purposes" as presenting state driver's licenses and identification cards for boarding commercially operated airline flights, entering federal buildings and nuclear power plants. The Act is a rider to an act of the United States Congress titled Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005. The Real ID Act implements the following:

Establishing new national standards for state-issued driver licenses and non-driver identification cards;
Waiving laws that interfere with construction of physical barriers at the borders;
Updating and tightening the laws on application for asylum and deportation of aliens for terrorist activity;
Introducing rules covering "delivery bonds" (rather like bail bonds but for aliens who have been released pending hearings);
Funding some reports and pilot projects related to border security; and
Changing visa limits for temporary workers, nurses, and Australian citizens.

As of April 2, 2008, all 50 states have either applied for extensions of the original May 11, 2008 compliance deadline or received unsolicited extensions, meaning that the REAL ID Act won't become an issue at federal facilities and airports until December 31, 2009.

Legislative history

The Real ID Act started off as While most liberal groups and most Democratic politicians oppose the Real ID Act to varying degrees, conservatives are split on the issue. Real ID is opposed by such conservative-leaning groups as Gun Owners of America, by the editorial page of the Wall Street Journal as well as by many current and former Republican members of Congress. Apart from the Bush administration, the Real ID Act is strongly supported by the conservative Heritage Foundation and by many anti-illegal immigration advocates.
Among the 2008 presidential candidates, according to a February 2008 CNet report at news.com, John McCain strongly supports the Real ID Act, Barack Obama and Ron Paul flatly oppose it, while Hillary Clinton called for the law to be reviewed. In a September 2007 interview Mike Huckabee expressed opposition to the Real ID Act, calling the Real ID Act "a huge mistake". .

Congressional passage procedure controversy

The original Real ID Act, H. R. 418, was approved by the House on February 10, 2005 by a vote of 261-161. At the insistence of the Real ID Act sponsor and then House Judiciary Committee Chair F. James Sensenbrenner (Republican, Wisconsin), the Real ID Act was subsequently attached by the House Republican leadership as a rider to H.R. 1268, a bill dealing with emergency appropriations for the Iraq War and with the Tsunami relief funding. H.R. 1268 was widely regarded as a "must-pass" legislation. The original version of H.R. 1268 was passed by the Senate on April 21, 2005 and didn't include the Real ID Act. However, the Real ID Act was inserted in the conference report on H.R. 1268 that was then passed by the House on May 5, 2005 by a 368-58 vote and was unanimously passed by the Senate on May 10, 2005. The Senate never discussed or voted on the Real ID Act specifically and no Senate committee hearings were conducted on the Real ID Act prior to its passage. Critics charged that this procedure was undemocratic and that the bill's proponents avoided a substantive debate on a far-reaching piece of legislation by attaching it to a "must-pass" bill.
A May 3, 2005 statement by the American Immigration Lawers Association said: "Because Congress held no hearings or meaningful debate on the legislation and amended it to a must-pass spending bill, the REAL ID Act didn't receive the scrutiny necessary for most measures, and most certainly not the level required for a measure of this importance and impact. Consistent with the lack of debate and discussion, conference negotiations also were held behind closed doors, with Democrats prevented from participating."

National ID card controversy

There is disagreement about whether the Real ID Act institutes a "national identification card" system. The new law only sets forth national standards, but leaves the issuance of cards and the maintenance of databases in state hands; therefore, the Department of Homeland Security claims it isn't a "national ID" system. Web sites such as no2realid.org, unrealid.com, and realnightmare.org argue that this is a trivial distinction, and that the new cards are in fact national ID cards, thanks to the uniform national standards created by the AAMVA and (especially) the linked databases, and by the fact that such identification is mandatory if people wish to travel out of the US.
Many advocacy groups and individual opponents of the Real ID Act believe that having a Real ID-compliant license may become a requirement for various basic tasks. Thus a January 2008 statement by ACLU of Maryland says: "The law places no limits on potential required uses for Real IDs. In time, Real IDs could be required to vote, collect a Social Security check, access Medicaid, open a bank account, go to an Orioles game, or buy a gun. The private sector could begin mandating a Real ID to perform countless commercial and financial activities, such as renting a DVD or buying car insurance. Real ID cards would become a necessity, making them de facto national IDs." However, it should be noted that in order to perform many of those tasks, government-issued identification is already required (for example, two forms of ID - usually a driver's license, passport, or Social Security card - are required by the Patriot act in order to open a bank account).

State adoption and non-compliance

Portions of the Real ID Act pertaining to states were scheduled to take effect on May 11, 2008, three years after the law passed, but the deadline had been extended to December 31, 2009. On January 11, 2008, it was announced the deadline has been extended again, until 2011, in hopes of gaining more support from states.
On January 25, 2007, a Resolution passed overwhelmingly in the Maine Legislature that refuses implementation of the Real ID Act in that state, and demands Congress repeal the law. Many Maine lawmakers believe the law does more harm than good, that it would be a bureaucratic nightmare to enforce, is threatening to individual privacy, makes citizens increasingly vulnerable to ID theft, and would cost Maine taxpayers at least $185 million in five years because of the massive unfunded federal mandates on all the states. The Resolution vote in the Maine House was 137-4 and in the Maine Senate unanimous, 34-0.
On February 16, 2007, Utah unanimously passed a resolution that opposes the REAL ID Act. The resolution states that REAL ID is "in opposition to the Jeffersonian principles of individual liberty, free markets, and limited government." It further states that "the use of identification-based security can't be justified as part of a 'layered' security system if the costs of the identification 'layer'--in dollars, lost privacy, and lost liberty--are greater than the security identification provides":

"the "common machine-readable technology" required by the REAL ID Act would convert state-issued driver licenses and identification cards into tracking devices, allowing computers to note and record people's whereabouts each time they're identified"

"the requirement that states maintain databases of information about their citizens and residents and then share this personal information with all other states will expose every state to the information security weaknesses of every other state and threaten the privacy of every American"

"the REAL ID Act wrongly coerces states into doing the federal government's bidding by threatening to refuse noncomplying states' citizens the privileges and immunities enjoyed by other states' citizens"

Arkansas, Colorado, Georgia, Hawaii, Idaho, Illinois, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Dakota, Oklahoma, South Carolina, Tennessee, and Washington have joined Maine and Utah in passing legislation opposing Real ID. However it should be noted that most of these actions are non-binding resolutions rather than acts of law, leaving the decision about compliance to the governors themselves.
   Similar resolutions are pending in Alaska, Arizona, Kentucky, Louisiana, Maryland, Massachusetts, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Vermont, Washington, D.C., West Virginia, Wisconsin and Wyoming.
   Other states have moved aggressively to upgrade their IDs since 9/11, and still others have staked decidedly pro-Real ID positions, such as North Carolina,, and Michigan. Some states whose legislatures passed non-binding resolutions opposing REAL ID are nonetheless working to comply with the law, such as Illinois. In announcing the new regulations, Secretary of Homeland Security Michael Chertoff cited California, Alabama and North Dakota as examples of states that had made progress in complying with Real ID.
   New York's new policy of issuing driver's licenses to undocumented residents upon presentation of a valid foreign passport goes against the requirements for documentation of legal status and a valid Social Security Number.
   Driver's licenses issued by states which don't file a waiver indicating intent to comply with the new standards will not be valid for air travel or to enter federal buildings starting May 11, 2008.
   As of January 29, 2008, the Department of Homeland Security has announced $79.8 million in grant monies to assist states with REAL ID implementation, and set an application deadline of March 7, 2008.

Constitutionality

Some critics claim that the Real ID Act violates the Tenth Amendment to the United States Constitution as a federal legislation in an area that, under the terms of the Tenth Amendment, is the province of the states. Thus, Anthony Romero, the executive director of ACLU, stated: "... Real ID is an unfunded mandate that violates the Constitution's 10th Amendment on state powers, destroys states' dual sovereignty and consolidates every American's private information, leaving all of us far more vulnerable to identity thieves." .
   Former Republican U.S. Representative Bob Barr wrote in a February 2008 article: "A person not possessing a Real ID Act-compliant identification card couldn't enter any federal building, or an office of his or her congressman or senator or the U.S. Capitol. This effectively denies that person their fundamental rights to assembly and to petition the government as guaranteed in the First Amendment."
   The DHS final rule regarding implementation of the Real ID Act discusses a number of constitutional concerns raised by the commenters on the proposed version of this rule. The DHS rule explicitly rejects the assertion that the implementation of the Real ID Act will lead to violations of the citizens' individual constitutional rights (page 5284 of the DHS rule in the Federal register). In relation to the Tenth Amendment argument about violation of states' constitutional rights, the DHS rule acknowledges that that these concerns have been raised by a number of individual commenters and in the comments by some states. The DHS rule doesn't attempt to rebuff the Tenth Amendment argument directly, but says that the DHS is acting in accordance with the authority granted to it by the Real ID Act and that DHS has been and will be working closely with the states on the implementation of the Real ID Act (pages 5284 and 5317 of the DHS final rule in the Federal Register).
   On November 1, 2007, attorneys for Defenders of Wildlife and the Sierra Club filed an amended complaint in U.S. District Court challenging the 2005 REAL ID Act. The amended complaint alleges that this unprecedented authority violates the fundamental separation of powers principles enshrined in the U.S. Constitution. The environmental groups argue that Congress unconstitutionally delegated the power to the Department of Homeland Security (an appointed Executive branch not accountable to the public) to pick and choose which laws will apply to border wall construction. On December 18, 2007, Judge Ellen S. Huvelle rejected the challenge.

Asylum and deportation controversy

Many immigrant and civil rights advocates feel that the changes related to evidentiary standards and the immigration officers' discretion in asylum cases, contained in the Real ID Act, would prevent many legitimate asylum seekers from obtaining asylum. . Thus a 2005 article in LCCR-sponsored "Civil Rights Monitor" says: "The bill also contained changes to asylum standards, which according to LCCR, would prevent many legitimate asylum seekers from obtaining safe haven in the United States. These changes gave immigration officials broad discretion to demand certain evidence to support an asylum claim, with little regard to whether the evidence can realistically be obtained; as well as the discretion to deny claims based on such subjective factors as "demeanor". Critics said the reason for putting such asylum restrictions into what was being sold as an antiterrorism bill was unclear, given that suspected terrorists are already barred from obtaining asylum or any other immigration benefit. " .
Similarly, some immigration and human rights advocacy groups maintain that the Real ID Act provides an overly broad definition of "terrorist activity" that will prevent some deserving categories of applicants from gaining asylum or refugee status in the United States. A November 2007 report by Human Rights Watch raises this criticism specifically in relation to former child soldiers who have been forcibly and illegally recruited to participate in an armed group.

Judicial review controversy

A previous version of the Real ID Act ( The Bush administration, in the DHS final rule regarding the Real ID Act implementation, counters that the security precautions regarding handling sensitive personal data and hiring DMV workers, that are specified in the Real ID Act and in the DHS final rule, provide sufficient protections against unauthorized use and theft of such personal data (pages 5281-5283 of the DHS final rule in the Federal Register).
Another privacy concern raised by the privacy advocates, such as the Electronic Frontier Foundation, is that the implementation of the Real ID Act will make it substantially easier for the government to track numerous activities of Americans and conduct their surveillance. Supporters of the Real ID Act, such as a conservative think-tank the Heritage Foundation, reject this criticism and maintain that states will be permitted to share data only when validating someone's identity.
The Data Privacy and Integrity Advisory Committee, which was established to advise the Department of Homeland Security on privacy-related issues, released a statement regarding the Department of Homeland Security's proposed rules for the standardization of state driver licenses on May 7, 2007. The committee stated that "Given that these issues have not received adequate consideration, the Committee feels it's important that the following comments don't constitute an endorsement of REAL ID or the regulations as workable or appropriate," and "The issues pose serious risks to an individual’s privacy and, without amelioration, could undermine the stated goals of the REAL ID Act."

Congressional efforts to change or repeal the Real ID Act

On February 28, 2007 U.S. Senator Daniel Akaka [D-HI] introduced the Senate Bill S. 717, "Identification Security Enhancement Act of 2007", subtitled: "A bill to repeal title II of the REAL ID Act of 2005, to restore section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004, which provides States additional regulatory flexibility and funding authorization to more rapidly produce tamper- and counterfeit-resistant driver's licenses, and to protect privacy and civil liberties by providing interested stakeholders on a negotiated rulemaking with guidance to achieve improved 21st century licenses to improve national security". The bill is co-sponsored by Senators Lamar Alexander [R-TN], Max Baucus [D-MT], Patrick Leahy [D-VT], John Sununu [R-NH], Jon Tester [D-MT]. The bill was read twice and referred to the Senate Committee on the Judiciary on February 28, 2007.
A similar bill was introduced on February 16, 2007 in the U.S. House of Representatives by Rep. Thomas Allen [D-ME], with 32 co-sponsors (all Democrats). The House bill, H.R. 1117, "REAL ID Repeal and Identification Security Enhancement Act of 2007", is subtitled: "A bill to repeal title II of the REAL ID Act of 2005, to restore section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004, which provides States additional regulatory flexibility and funding authorization to more rapidly produce tamper- and counterfeit-resistant driver's licenses, and to protect privacy and civil liberties by providing interested stakeholders on a negotiated rulemaking with guidance to achieve improved 21st century licenses to improve national security." On May 23, 2007, the House Oversight and Government Reform Committee referred H.R. 1117 to the Subcommittee on Government Management, Organization, and Procurement.
A more limited bill, S. 563, that would extend the deadlines for the states' compliance with the Real ID Act, was introduced on February 13, 2007 in the U.S. Senate by Sen. Susan Collins [R,ME], together with Senators Lamar Alexander [R,TN], Thomas Carper [D,DE], Charles Hagel [R,NE], and Olympia Snowe [R,ME].

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