This article reprinted with permission of Stateline.org
Congress and the Obama administration are considering ceding key ground in a long-running battle between the federal government and the states over Real ID, the 4-year-old federal program that requires all states to start issuing more secure driver's licenses by the end of the year.
Proposed legislation being circulated on Capitol Hill would give states more time, flexibility and money to meet federal Real ID requirements.
For the nation's more than 245 million drivers, the legislation would allow them to keep using their current driver's licenses to board commercial flights or enter federal buildings for the foreseeable future. Under Real ID, residents of states that do not meet a checklist of license upgrades would be unable to use those licenses for federal purposes beginning in January.
The congressional proposal may have the backing of the Obama administration. In an appearance Wednesday (April 22) in Washington, D.C., Homeland Security Secretary Janet Napolitano gave the clearest indication to date that the administration plans to push for changes that are favorable to the states.
"We've been, over the last weeks, meeting with governors of both parties to look at a way to repeal Real ID and substitute something else that ... accomplishes some of the same goals. And we hope to announce something on that soon," Napolitano said. As governor of Arizona, Napolitano signed a bill prohibiting the state from complying with Real ID; she now oversees the program.
The Real ID Act, passed by Congress in 2005, was intended to create nationwide security standards for driver's licenses to prevent them from falling into the hands of terrorists and illegal immigrants. The law is based on a recommendation by the 9/11 Commission, the independent panel that investigated the 2001 terrorist attacks and found that the Sept. 11 hijackers had obtained 30 pieces of state identification.
But states have revolted at Real ID, calling it an "unfunded federal mandate" that infringes on a core state responsibility: the issuance of driver's licenses.
Since 2005, at least 18 states have passed legislation opposing Real ID, either through non-binding resolutions or through statutes that expressly prohibit participation in the program, according to a database kept by the National Conference of State Legislatures. The organization, which represents the nation's more than 7,000 state legislators, will discuss the new congressional proposal on Friday (April 24) during its annual conference in Washington, D.C.
"A lot of us believe that Real ID is a slap in the face of (state) legislative prerogative," said Oregon state Sen. Bruce Starr (R), who this month voted for a bill that would prevent the state from spending any more money on Real ID unless the federal government steps up funding.
The Department of Homeland Security has estimated that Real ID will cost states $3.9 billion over 10 years, but the federal government has provided only about $135 million to states so far, said Molly Ramsdell, an NCSL analyst.
Separately, many state lawmakers -- and the American Civil Liberties Union -- have raised privacy concerns, calling Real ID a "national ID card" that could jeopardize personal data collected from millions of Americans.
With those objections in mind, state lawmakers across the ideological divide -- from fiscal conservatives concerned about the costs of Real ID to civil libertarians alarmed about privacy implications -- have banded together to oppose the law.
At the same time, many states already have moved forward independently on making their driver's licenses more secure, even if they have concerns about Real ID. Maryland, for example, recently agreed to ban illegal immigrants from receiving driver's licenses -- one of the key provisions of Real ID.
Even some states that have statutes opposing Real ID have taken
steps to improve security, prompting some critics to say Congress doesn't need to ease Real ID requirements.
Under the plan being discussed in Congress, federal funding and other key state concerns would be addressed, according to a working draft of the bill obtained by Stateline.org. The bill, which is still being negotiated but could be introduced by the end of the month in the U.S. Senate, is known as the Pass ID Act (Providing for Additional Security in States' Identification Act).
The working proposal would give states more time to comply with Real ID by scrapping the program's current rules and creating a new rule-making process. States would be able to shape the rules during a public comment period.
Without that change, states must meet 18 federal benchmarks by October to show they are on their way to complying with Real ID by the end of the year. The benchmarks include verifying the lawful status of driver's license applicants, checking their Social Security numbers against federal records and agreeing to mark driver's licenses to show they either are compliant or not compliant with Real ID.
A separate provision in the proposal -- one the states say is essential -- would require the federal government to pick up the tab for states' immigration and Social Security checks, which are done using federal databases. States now must foot the bill, potentially costing hundreds of millions of dollars.
While state officials are cheering possible changes to a federal policy they have long criticized, others say the revisions would take the teeth out of the law and ignore the 9/11 Commission.
The proposal is "a complete gutting of Real ID," said Janice Kephart, former counsel to the 9/11 Commission and director of national security policy at the Center for Immigration Studies, a think tank opposed to illegal immigration. In a recent analysis of the proposal, Kephart said it would allow criminals and illegal immigrants to obtain state identification easily and "return license and ID issuance to pre-9/11 standards."
Others say the new congressional proposal does not go far enough. Jim Harper, an opponent of Real ID and director of information policy studies at the libertarian Cato Institute, said he is skeptical that the current legislation would allay all states' concerns. He predicted it would still face resistance from certain states - such as South Carolina, Maine and Montana - that have been among the most vocal critics of Real ID.
"The structure of it," he said, "is obviously Real ID, with some of the sharpest corners taken off."