This map, updated earlier Wednesday by Homeland Security, shows all states as green--meaning no new air travel or federal building hassles on May 11. Current hassles will continue. The next deadline is December 31, 2009.
WASHINGTON--In the long-running Real ID staring match, the U.S. Department of Homeland Security ended up being the first to blink.
Homeland Security announced Wednesday that all 50 states and the District of Columbia will be technically Real ID-compliant by the May 11, 2008 deadline--even though many states actually have rejected the concept and have zero plans to embrace a national ID card.
This means Americans will face no new hassles when using their drivers licenses to enter federal buildings or fly on airplanes starting on May 11. That's a good thing.
But the way this turned out is so odd it's worth repeating. States including New Hampshire, Maine, South Carolina, Oklahoma, Washington, and Montana have enacted laws saying "hell no we'll never comply with Real ID." And Homeland Security officials carefully ignored those public votes of condemnation, instead pretending that those states really intend to acquiesce by the next major deadline of December 31, 2009. (See our special report on Real ID from earlier this year.)
"Now they've got 18 months to actually finish the process of being able to issue the cards that will meet the requirements," Homeland Security Secretary Michael Chertoff told a small group of reporters and bloggers here on Wednesday. "We will have to watch this because the one thing that will be important is for a state not to be dilatory in completing the process."
That may have been a more serious threat a few years ago, when Chertoff was beginning his defense of the Real ID Act, which became law as part of a must-pass tsunami relief and Iraq emergency appropriations bill in 2005.
Now, however, state officials realize that Homeland Security is more likely to back down than not. The first sign of this came when the agency decided to treat a request for an extension past May 11 as a formal agreement to comply with all Real ID rules. The second came when Homeland Security retreated to its fallback position: even a symbolic gesture on the part of a governor amounted to full compliance.
A good example of this dynamic is what happened in the last few days involving Maine, a state that has rejected Real ID in no uncertain terms, and was the only will-have-trouble-at-airports state as of this morning. Its legislation approved last year says that it "refuses to implement the Real ID Act and thereby protest the treatment by Congress and the president of the states as agents of the federal government."
Maine nevertheless asked the feds not to penalize its travelers. Stewart Baker, Homeland Security assistant secretary for policy, replied in a letter that if Maine "is prepared to commit" to embracing Real ID by 5 p.m. on April 2, "we will grant an extension conditioned upon performance of these commitments." (The commitments Baker requested include using a Homeland Security identity verification system, using facial recognition technology so someone can't get two licenses, and so on.)
In response, Gov. John Baldacci, a Democrat, wrote back to Baker saying in part:
I will seek legislation to halt Maine's current practice of issuing licenses to those not present lawfully in the United States.
I will submit legislation, which includes a funding source and appropriations, that will adopt three changes in Maine's licensing processes:
Maine will enter into an agreement with USCIS and utilize the Systematic Alien Verification for Entitlements Program to verify DHS documents presented by non-citizens.
Maine will begin capturing and maintaining photographs of each individual applying for a license or state identification card, even if no license is issued.
It worked. Maine got a green check mark, and its licenses will continue to be valid for federal purposes after May 11--even though Baldacci was, for the most part, merely promising to introduce legislation. And the Maine legislators, who soundly rebuked the Bush administration by nearly unanimous votes last year, will be the ones to vote on it.
Last month, Montana took a similar approach. Its governor, Brian Schweitzer, a Democrat, has repeatedly denounced Real ID and even called on his counterparts (PDF) in other states to oppose it. But Homeland Security dutifully accepted a relatively hostile letter from Schweitzer--saying he will never "authorize implementation of the Real ID Act"--as good enough.
Now that the May 11 deadline has become effectively meaningless, the next major deadline is December 31, 2009, at which point Homeland Security currently says it will require "certification that the state has achieved the benchmarks set forth in the Material Compliance Checklist."
In political terms, that's a long time--and a new presidential administration--away. Some opponents of Real ID are already predicting that no state will actually comply with the deadline, or, alternatively, the next administration will find a way to quietly dispose of Real ID without much fanfare.
"DHS is not in power here," said Jim Harper, the director of information policy studies at the free-market Cato Institute. "The states are in power. DHS has done all it could, but from a position of weakness...DHS put the best face it could on its capitulation to states with backbone. A lot more states will recognize that they own this issue, they control this debate."
News.com's Anne Broache contributed to this report from Washington, D.C.
The State of California has for years been a supporter of Real ID, if not an altogether enthusiastic one. Now that may be about to change.
California State Assembly member Pedro Nava, the influential Democratic chairman of the transportation committee, has introduced an anti-Real ID resolution. It asks the state's congressional delegation in Washington, D.C., to "support measures to repeal Real ID."
California State Assembly member Pedro Nava
(Credit: Pedro Nava)"I quite frankly think the Legislature will support this measure, my resolution, because there are too many unanswered questions," Nava, who represents part of Santa Barbara and Ventura counties, said in an interview on Tuesday. Liberal groups like the American Civil Liberties Union and conservative-libertarian ones like Gun Owners of America support his approach, he added.
Until now, California has been a lukewarm supporter of the law. Federal regulations creating a uniform national ID card--called Real ID--take effect on May 11. The law promises to cause travel headaches and problems entering federal buildings for residents of states that have not agreed to comply or request an extension. (See our special report from last month.)
Last year, Denise Blair, the assistant deputy director of the California Department of Motor Vehicles said of Real ID: "We're certainly not the rabble-rousers out there trying to lead a rebellion" against the law." In a statement in January, the California DMV said the Department of Homeland Security's final Real ID regulations will "further strengthen the security of our driver licenses and identification cards."
Nava's legislation isn't as sweeping as what other states, such as New Hampshire, Montana, and South Carolina, have already enacted. It still would permit California to comply with Real ID while its congressional delegation tries to rewrite the law.
But the symbolism of the nation's most populous state deciding--should the Legislature agree with Nava--that one of Homeland Security's most high-profile initiatives is deeply flawed is undeniable. Because California's costs will be so high, with one estimate in the neighborhood of $500 million, at a time when the state budget deficit has grown to $16 billion, the legislature now has a strong incentive to find a way to cut costs.
Nava's bill was introduced on Monday; he predicts committee hearings within a month and a floor vote in the Assembly within two months.
This U.S. map prepared by the Department of Homeland Security shows states that have asked for an extension to comply with the controversial Real ID Act. What it doesn't show, however, is the roughly one-third of states that have asked for an extension while having no clear intention of ever complying.
A seemingly odd phenomenon is occurring among some U.S. states that have flatly rejected the Real ID Act.
Even though officials in these states have publicly assured privacy-conscious voters that they steadfastly oppose Real ID's requirement of nationalized driver's licenses and ID cards, these same politicians and bureaucrats are quietly asking the Bush administration for more time to comply with the law.
The latest example is Oklahoma. In our special report published last month, we listed five states that--at the time we wrote the articles--indicated that they would not comply with Real ID. Those were Maine, South Carolina, Montana, New Hampshire, and Oklahoma; residents of states that don't comply will likely face hassles traveling on commercial flights or entering federal buildings starting May 11.
Oklahoma's legislature had approved legislation saying that Real ID "is inimical to the security and well-being of the people of Oklahoma" and, therefore, "the state of Oklahoma shall not participate in the implementation of the Real ID Act. The Department of Public Safety is hereby directed not to implement the provisions of the Real ID Act..."
That seems pretty clear; in fact, it would be difficult to be any clearer.
But now we've learned that Oklahoma's DMV has asked the U.S. Department of Homeland Security for an extension anyway. An official DHS map puts the state squarely in the will-comply-if-you-give-us-more-time category.
Capt. Chris West, an Oklahoma Department of Public Safety spokesman, told us this week:
There was a request for an extension on a deadline to a rule that would have (been) implemented in May of this year. We got an extension until the end of December 2009, so Oklahomans can still use the driver's licenses that they have. And really that's the extent to what I can answer.
Not speaking for the governor's office, the extension is so that our Oklahomans can continue to travel until the legislature does something, regardless of which way they decide to move with it.
I'm not a member of nor do I represent the Oklahoma state legislature; those are the individuals who will have to pursue whatever will be done, and the Department of Public Safety can't second guess what they're doing.
Translation: Oklahoma has zero intention of complying but is nevertheless taking advantage of a loophole in DHS regulations. That loophole says that a state's licenses will continue to be accepted at airports and federal buildings through December 31, 2009--even if the state plans to take precisely zero steps to implement Real ID by doing things like linking its databases or slapping a two-dimensional barcode on licenses and ID cards.
It's kind of disappointing that Oklahoma is choosing to squeeze through this loophole. In politics, there's something to be said for an unambiguous position, which is what Maine, South Carolina, Montana, Delaware, and New Hampshire have taken. If a law truly is that onerous, publicly denouncing the law--and then privately asking for an extension to comply--sends mixed messages.
On the other hand, states that have asked for an extension can bow out of Real ID at any time; asking for an extension imposes no legal obligation on them. And it does allow the state's licenses to continue to function normally (for purposes of air travel and federal building entry) for an additional 19 months.
While Oklahoma has been one of the most staunchly anti-Real ID states, other states that have criticized the law have adopted the same approach. Washington state has a law barring compliance with Real ID in its current form, but it has asked for an extension. So has Idaho, even though a spokesman for the governor tells us: "We still have serious concerns and reservations about it and its future here is to be determined."
Oregon, North Dakota, South Dakota, Nebraska, Arkansas, Georgia, Tennessee, and Pennsylvania are among the states that have requested extensions while expressing strong reservations about eventual compliance. The Real ID skeptics total, roughly, a third of the states in the union.
To grease the rails, Homeland Security has taken the remarkable step of handing out extensions even to states that haven't asked for them. Arizona was told it would "automatically" get one, and New York told us that it received an "unsolicited extension."
Why is that? One obvious answer is that Homeland Security officials like Stewart Baker are political appointees chosen by President Bush. They're not likely to have their current jobs by December 2009; even if the next president is John McCain, he'll pick his own loyalists early next year. (These positions are valuable because they can lead to lucrative lobbying and law firm jobs; a New York Times article from 2006 counted at least 90 Homeland Security officials who have cashed in with unseemly haste, with some making around $1 million a year.)
The unsolicited extensions, the granting of extensions to states like Oklahoma that have zero intention of ever complying, the extension of the compliance deadline to December 2009 even though the text of the law specifies May 2008--all these point to one explanation. Today's officials in senior posts at Homeland Security have postponed the real pain of complying with Real ID until they're no longer around to be blamed.
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