TO HOMELAND SECURITY ON REAL ID: NO THANKS
PART 1 of 2
May 11, 2008
Today—May 11, 2008—is not just Mother’s Day but REAL ID D-Day, so to speak: the day citizens of states not granted extensions to comply with the REAL ID Act of 2005 would find themselves unable to board planes, enter federal buildings, etc.
By the end of last year, seven states had passed laws prohibiting implementation of REAL ID in their state: Maine, Montana, Oklahoma, South Carolina, Washington, New Hampshire, and Georgia. That number became eight on April 9 of this year when Idaho joined up. Ten states had laws that were passed in one house but not the other. Eight more states had introduced such laws. Twelve had passed nonbinding resolutions denouncing REAL ID. That’s a 38-state rebellion!
With no evidence that an increasingly dictatorial Department of Homeland Security (DHS) would back down, one by one, most of the states blinked and requested extensions. All but four: Montana, New Hampshire, Maine, and my adopted home state of South Carolina. According to DHS rules handed down in January, states had until March 31 to request an extension. If they did not, the above consequences for their citizens would kick in.
With the clock ticking, on March 31, 2008, South Carolina lived up to its reputation as a sometimes-defiant state with leaders capable of thinking independently and stand up for states’ rights (integral to the original meaning of federalism).
That day, Governor Mark Sanford declined to seek an extension from the Department of Homeland Security in order to comply with the REAL ID Act, which as some have noted did not get through Congress on its own merits but rode piggyback on an appropriations bill that Congress considered must-pass. That bill was signed into law by President Bush on May 11, 2005. For quite a while, little was said about REAL ID. Those of us who tried to draw attention to the subject often found ourselves derided as “conspiracy nuts.”
Last year, a small group of South Carolinians (which included your humble narrator) noticed that there was a rebellion brewing in certain states: New Hampshire, Maine, and Montana were examples. On January 25, 2007, Maine enacted the first resolution against the REAL ID Act. We wondered: what was South Carolina doing? Nothing, so far as we could tell. So we took action on our own. Slightly over a year ago, we drafted a proposed bill and took it to the South Carolina General Assembly. This involved a few day trips to Columbia. Many of our representatives were unfamiliar with REAL ID.
The law had never been publicized except on the Internet. And some folks out there—I’ve heard from a few—are really dense enough to wonder why we think there are “conspiracies” afoot. We educated our representatives. Fortunately, they were willing to be educated. They did not dismiss us as “conspiracy nuts.” I believe they were impressed by the fact that we were coming to Columbia at our own expense. We were not working as paid lobbyists. We had documentation to back up what we were saying, including copies of the REAL ID Act itself. Our bill went through several modifications and was shortened considerably, but finally came to the floor as S.449. Here was S.449’s crucial passage:
“Title 56 of the 1976 Code is amended by adding: Section 56-1-85. The State shall not participate in the implementation of the federal REAL ID Act. This act takes effect upon approval by the Governor.”
The S.C. General Assembly passed S.449 on June 8, 2007. Five days later, on June 13, Governor Mark Sanford made a special trip to Greenville to sign S.449 into law publicly. As many of our citizens group attended as could fit the event into our work schedules, and were recognized by the Governor. Why Greenville? Because nearly all the anti-REAL ID agitation had come from the Upstate, and Greenville was the largest city. Our neighbor, Spartanburg, had produced its share of anti-REAL ID activists. (We never found out what the rest of the state was doing.)
Aaron Bolinger, then living in Spartanburg, deserves the lion’s share of credit for having spearheaded our efforts. A former lobbyist with several years of experience on Capitol Hill, he knew how to approach the General Assembly. From him I learned much. He had assembled our documentation into a single package containing information on nearly every aspect, ramification, and point of view one could use to evaluate Real ID—its history, its costs as determined by DHS itself or by professional groups such as the American Association of Motor Vehicle Administrators, its risk to our privacy, information on what other states were doing, and even the theological questions REAL ID raises (think of the “mark of the Beast” in Revelation). Having tasted victory here, Bolinger moved to Pennsylvania to assist that state’s anti-REAL ID effort.
Our victory was, of course, temporary. Back to 2008. DHS Security Secretary Michael Chertoff, as I mentioned, handed down final REAL ID rules on January 11. The new rules allowed states to request extensions, which would be granted if they could show “material compliance” with the Act. They would have until May 11, 2011, to achieve full compliance. Four states, as I also mentioned, remained steadfast in refusing to ask for extensions.
Almost immediately, Montana Governor Brian Schweitzer sent a letter to other governors stating, “I am asking you to join with me in resisting the DHS coercion to comply with the provisions of REAL ID. If we stand together either DHS will blink or Congress will have to act to avoid havoc at our nation's airports and federal courthouses.” He cited concerns over privacy, states’ rights, and the cost of implementation. His letter went to governors of Colorado, Georgia, Idaho, Maine, New Hampshire, Oklahoma, South Carolina, Arizona, Hawaii, Illinois, Missouri, Nebraska, Nevada, North Dakota, Pennsylvania, Tennessee, and Washington.
Homeland Security spokesperson Laura Keehner responded: “That will mean real consequences for their citizens starting in May if their leadership chooses not to comply. That includes getting on an airplane or entering a federal building, so they will need to get passports.”
In other words, DHS’s way of dealing with dissent is typically authoritarian: make a threat. In Montana’s case, DHS blinked. The agency granted the state an extension it didn’t ask for. Existing Montana drivers licenses will continue to be accepted for federal purposes. Schweitzer was not appeased. “I sent them a horse,” he said afterwards, “and if they want to call it a zebra, that's up to them.” He remained defiant.
On a March 7 National Public Radio interview he did not mince words. “[E]very month,” he said, the feds “come out with another harebrained scheme.… We play along for a while.… But if it comes to a head we’ve found it’s just best to tell them they can go to hell.”
On March 31, South Carolina Governor Sanford made his stand. Sanford was more polite than Schweitzer, but what happened was essentially the same. He sent a five-page letter to Chertoff stating that South Carolina declines to participate, would not seek an extension, and explained in great detail why not. He wrote of “what I consider to be grave consequences to the taxpayer, privacy interests, and civil liberties in our country if we continue with REAL ID in its present form.”
“As you know,” he states at the outset of the letter, “South Carolina has enacted legislation that prevents the state from complying with REAL ID, and I am duty bound to comply with the laws of our state.”
Sanford went on to explain his “serious reservations about REAL ID…” He observes, first, what I noted above: “REAL ID was never fully debated in Congress. As we both know, REAL ID was included as a rider to the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief in 2005… Does it make any sense to begin a de facto national ID system without debate?”
He argues, second: “at some point someone has got to draw a line in the sand with regard to unfunded federal mandates. Based on the broad array of groups from across the political spectrum that oppose REAL ID, if there was ever a federal mandate on which to draw that line in the sand, this seems to be it.” He then discussed Real ID’s price tag. “DHS currently estimates that REAL ID will cost $9.9 billion [down from $23 billion]. Over the last 15 years that I have had reason to closely watch things in Washington, three-fold decreases in cost have never been the order of things.
Nonetheless, if one leaves aside for a moment what we believe to be implausible assumptions that go with this downward revision, the revised costs are as follows: $3.9 billion cost to the states, $5.8 billion cost to individuals, and $0.2 billion ($200 million) to the federal government and private sector. It seems to me there is something wrong when the federal government imposes the burdens of creating a national ID system on the states—but only pays for two percent of the cost.”
Moreover, “REAL ID also does not address the cost to verify information across databases.” Sanford observes that the cost of the verification process has gone up. “Before legislation like this goes into effect, I believe transaction costs should be clearly and specifically enumerated.”
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This assumes that the federal government can afford REAL ID. “As you know,” he had said earlier in the letter, “Arizona Governor Janet Napolitano and I share very different political philosophies, but I completely agree with her that if the federal government wants something, then the federal government should pay for it…. Unfunded mandates and unspecified costs are relevant to a national security debate and REAL ID because of the larger spending problems in Washington.” Our total indebtedness, that is, totals over $50 trillion. “[S]ustainable spending, especially given what is happening to the dollar, is a big part of this. In short, if the federal government thinks a national ID card is necessary, then, after debating its merits, they should pay for it—after determining they can pay for it” (orig. emphasis). For part two click below.
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