After two decades, the federal government is finally enforcing the REAL ID Act of 2005.
But not really.
In the face of widespread noncompliance, the feds were forced to blink yet again and give folks without a compliant driver’s license an out if they still want to fly.
After multiple deadline extensions, in December 2022, the Department of Homeland Security announced it would begin enforcing REAL ID requirements at airport checkpoints in May 2025.
“This extension will give states the 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,” Secretary of Homeland Security Alejandro N. Mayorkas said in a press release at the time.
This time, the feds stuck to their deadline and began requiring REAL ID to clear airport security and for access to certain federal facilities.
But if you still don’t have a REAL ID-compliant license, don’t despair.
Travelers without a REAL ID or an acceptable alternative can pay $45 to clear airport TSA checkpoints using an on-site identity verification process.
NONCOMPLIANCE STYMIED REAL ID IMPLEMENTATION
Passing a law is one thing. Enforcing it is something else altogether.
This is yet another in a long line of concessions made by the feds as they faced years of resistance to the implementation of REAL ID. The DHS has delayed the full implementation multiple times since Congress passed the act in 2005, with an original implementation date of 2008.
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.
The fact that the department has extended the deadline for another two years and then still had to provide an alternative indicates there is likely still a high level of non-compliance. The federal government doesn’t want the political fallout it would face by effectively banning millions of people from domestic air travel.
Granting extensions has been the government’s modus operandi from the beginning.
Under the law, all states were supposed to comply by 2008. However, the federal government found coercing unwilling states was no simple task. 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.
Then to May 2025.
And now we have a workaround.
The federal government’s struggle to implement REAL ID for decades reveals a dirty little secret – the feds can’t do much of anything when states refuse to cooperate – and when the people refuse to comply. 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 because so many people have resisted getting a federally-compliant ID
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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