Nullification Works: REAL ID Compliance Deadline Extended Yet Again
WASHINGTON (Dec. 7, 2022) – The Department of Homeland Security (DHS) has extended the enforcement deadline for REAL ID Act of 2005.
On Monday, the DHS announced it would not begin enforcing REAL ID requirements until May 2025. After fifteen years of delays due to opposition in the states, the rules requiring a REAL ID-compliant driver’s license to board airlines and access federal facilities were supposed to go into effect in May 2023.
“DHS continues to work closely with U.S. states, the District of Columbia, and the U.S. territories to meet REAL ID requirements,” Secretary of Homeland Security Alejandro N. Mayorkas said in a press release. “This extension will give states needed time to ensure their residents can obtain a REAL ID-compliant license or identification card. DHS will also use this time to implement innovations to make the process more efficient and accessible. We will continue to ensure that the American public can travel safely.”
Practically speaking, it means that people with non-compliant driver’s licenses or ID cards will still be able to use them at airport TSA checkpoints for another two years. At least.
DHS said that the extension was necessary “to address the lingering impacts of the COVID-19 pandemic on the ability to obtain a REAL ID driver’s license or identification card.”
We’ve heard this song before – many times.
The DHS has delayed the full implementation of REAL ID multiple times since Congress passed the act in 2005 with an original implementation date of 2008.
The federal government has used the threat of turning states into virtual no-fly zones to compel the adoption of REAL ID. But even with badgering and threats, the feds have found it difficult to coerce states into compliance.
The act signed into law by President George W. Bush essentially mandates a national ID system and puts the onus of implementation on each state.
Things didn’t go smoothly after the passage of REAL ID. States rebelled for several reasons, including privacy concerns, along with the fact that Congress didn’t provide any funding for the mandates it expects states to implement. Many states simply chose not to act. New Hampshire, Missouri, Maine, Oklahoma and others took things a step further, passing laws expressly prohibiting compliance with the national ID standards.
By any conceivable measure, the implementation of REAL ID has been an abject failure because of this widespread state resistance.
After almost yearly implementation delays since 2008, it appeared DHS was seriously going to start enforcing the act. But in yet another about-face in April 2021, the Department extended the October 2021 deadline to May 2023. At the time, DHS said only 43 percent of American driver’s licenses were REAL ID compliant. That percentage has likely increased in the last 20 months, but the DHS did not provide any compliance data in its latest extension notice.
But even today, only 17 percent of IDs in Kentucky are REAL ID compliant. The fact that the department has extended the deadline for another two years indicates a high level of non-compliance. The federal government does not want the political fallout it would face by effectively banning millions of people from domestic air travel.
Granting extensions has been the fed’s modus operandi from the beginning.
Under the law, all states were supposed to be in compliance by 2008. But the federal government found coercing unwilling states wasn’t as easy as anticipated. Instead of forcing the issue, the feds issued waiver after waiver.
“There is an impasse,” Edward Hasbrouck a privacy advocate with the Identity Project told the New York Times in December 2015. “There has been a standoff for more than a decade now. The feds have limited powers to coerce the states in this case.”
Ten years after its passage, more than half the states in the Union still had not complied with REAL ID. Of the 28 not in compliance, 21 had “extension waivers” until October 2016.
In 2016, the feds ratcheted up their bullying tactics, specifically threatening to stop accepting noncompliant licenses at TSA security checkpoints. This would effectively ground travelers from states that refuse to comply with the unconstitutional national ID scheme. On Oct. 13, 2016, the Department of Homeland Security (DHS) sent letters to five states denying their request for time extensions to bring their driver’s licenses in compliance with REAL ID. At the time, the DHS set a 2018 deadline but still allowed for individual state extensions.
Instead of standing their ground, politicians began to cave. Idaho reversed its ban on Real ID implementation in 2016. Oklahoma followed suit the next year. At least six other states reversed course during this time period. Missouri lifted its ban on Real ID in 2018.
With states clamoring to get compliant, the enforcement deadline was ultimately extended to October 2020.
Then to October 2021.
Then to May 2023.
And now to May 2025.
The federal government’s struggle to implement REAL ID for what will be at least 17 years reveals a dirty little secret – the feds can’t do much of anything when states refuse to cooperate. This was the blueprint James Madison gave in Federalist #46 to resist “unwarrantable” or even unpopular federal acts. He said that a “refusal to cooperate with officers of the union” would create impediments and obstructions that would stymie federal actions.
This has certainly proved true when it comes to REAL ID.
But we also see another less pleasant reality in this saga. We can’t trust politicians to hold the line. State legislators and governors held the feds at bay for over a decade. It wasn’t until they started to cave that REAL ID gained any momentum toward implementation. And even then, the federal government has still faced a rocky road.
Ultimately, it takes public action to stop government overreach. We can’t just turn our heads and hope elected officials will do their job. That only happens when we keep the pressure on.
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