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States Working to Block REAL ID Law

Though the Senate is poised this week to send legislation to President Bush that sets sweeping new requirements for state drivers’ licenses, the battle is not about to end. Governors of both parties, who rue the measure as an unfunded federal mandate, vow to continue the fight.

“We’re going to look at the options we might have,” said Arkansas Gov. Mike Huckabee (R), vice chairman of the National Governors Association. “Court action might be one, or noncompliance is another.”

The requirements, which were attached to this year’s $82 billion supplemental war spending bill, would force states to demand that applicants for all new and renewed drivers’ licenses provide proof that they are in this country legally. It would also require department of motor vehicle employees to verify Social Security numbers and addresses.

If a state does not meet the standards, its residents would not be able to use their drivers’ licenses as identification to get on a commercial airplane or enter federal buildings.

House Judiciary Chairman Jim Sensenbrenner (R-Wis.), who authored the provisions, has said the new drivers’ license standards will help prevent terrorists who are in the United States illegally from getting official documentation that might help them more easily carry out an attack in the United States. Backers note that several of the hijackers in the Sept. 11, 2001, terrorist attacks obtained drivers’ licenses despite having expired visas.

Still, the nearly united opposition of governors, state legislators and state licensing officials to the “REAL ID” legislation failed to stop its passage in the House on Thursday and its expected passage in the Senate this week.

Though many Democrats and Republicans in Congress oppose the strict new drivers’ license requirements as well, they see voting against funding for troops in Iraq and Afghanistan as untenable. Notably, Democrats in the Senate have already said they would not filibuster the bill this week.

“They might as well attach it to a bill honoring mothers and Major League Baseball,” Huckabee said. “Nobody’s going to vote against it.”

But just because the bill will likely become law this week doesn’t mean that state governments have resigned themselves to implementing rules they say could collectively cost them $500 million over five years — a cost that states find prohibitive, given ballooning costs for and federal cutbacks to Medicaid, the health insurance program for the poor.

The bill, Huckabee said, essentially requires low-level employees at state DMVs to take on the duties of the Immigration and Naturalization Service.

“It forces entry-level state employees … to be INS agents. That’s totally ridiculous,” Huckabee said. “The states are going to have to enforce [immigration] laws that the federal government doesn’t have the will to do.”

Huckabee said state lawyers are looking at potential avenues to pursue in federal courts to stop the law in its tracks. Barring that, a large-scale protest by the nation’s governors could force Congress to revisit the law in the near future, he said.

“If 25 governors or more said, ‘No, we’re not going to let this be shoved down our throats,’” Huckabee said, then it might put more pressure on Congress to change the law, especially if Members of Congress were getting calls from constituents who couldn’t board airplanes because of the requirements.

Cheye Calvo, director of the transportation committee for the National Conference of State Legislatures, also held out the specter of states refusing to comply.

“States don’t have to do it,” Calvo said. States, which have been facing ever more dire budget crunches in recent years, may have to start picking and choosing which federal mandates they should comply with, Calvo said.

“They have to evaluate this federal mandate with all the other federal mandates,” he said. But Calvo added that states will first “take a look at [the law] and see if it’s possible or not. … I think they’re going to try to meet it first.”

Meanwhile, Jason King, spokesman for the American Association of Motor Vehicle Administrators, said AAMVA’s members will try to comply with the mandate, but will press Congress to appropriate the funds to do so. The current bill does not provide states with any additional monies to upgrade computer systems or train workers to do instant verification of identifying documents.

“We will do our best to comply,” said King. “But we have 21st-century legislation that needs some 21st-century funding.”

King added, “We are concerned, especially about it being an unfunded mandate, but we will work with [the Department of] Homeland Security to make it work for our members.”

King noted that the revised REAL ID in the supplemental still “gives states the autonomy to decide to issue drivers’ licenses to undocumented immigrants.” Indeed, as long as states have different IDs for those who cannot show proof of citizenship or legal residency, they may continue to issue licenses to illegal immigrants. Tennessee and Utah have already implemented such changes at their DMVs.

Meanwhile, governors and legislators are fuming that the new REAL ID bill will put an end to an advisory group at the Transportation Department that was designed to come up with a compromise approach.

The Regulatory Negotiation Advisory Committee was established in last year’s intelligence overhaul bill, which Sensenbrenner originally sought to use as the vehicle for REAL ID. Instead, compromise language establishing the advisory group was adopted, and Sensenbrenner won a promise from House GOP leaders to put the REAL ID legislation on the first “must pass” legislation of the 109th Congress, which turned out to be the supplemental war spending bill.

Though representatives from the states have been working since early this year to devise drivers’ license standards that states and federal entities could accept, advisory group members got a letter last week indicating that their activities would be halted now that REAL ID is close to becoming law.

“Since it appears that the REAL ID Act will be enacted in the near future, however, the next meeting of the advisory committee, scheduled for May 10-13, 2005, is suspended,” Jeffrey Shane, Transportation’s undersecretary for policy, wrote in an undated letter. “When the president signs the legislation, the Department will issue a Federal Register notice formally terminating the advisory committee and the negotiated rulemaking process.”

Calvo said it was just one more slap in the face to state representatives who have been trying to work with the Bush administration and Congress on drivers’ license standards.

“The whole process for REAL ID has been totally unencumbered by the way states actually issue drivers’ licenses,” Calvo said.

Huckabee agreed. “They’ve really wasted the time of all the people who’ve tried to have input,” he said.

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