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Congress Should Pressure States, Not DHS, on REAL ID | Commentary

The Department of Homeland Security recently announced which states would be granted an extension to comply with the REAL ID Act, a 2005 antiterrorism law aimed at improving the security of driver’s licenses.

Largely the result of congressional pressure, the DHS granted extensions to states that oppose REAL ID and have shown little progress in implementing the standards. That pressure was misplaced. States, not the DHS, determine whether to implement REAL ID. If members of Congress are concerned with REAL ID enforcement, they should pressure the legislatures and governors that enacted the prohibitions in the first place.

The REAL ID Act is a 2005 antiterrorism law with the goal of the preventing terrorists from fraudulently obtaining driver’s licenses under assumed or fictitious identities to carry out their attacks. REAL ID prohibits federal agencies, such as the Transportation Security Administration, from accepting driver’s licenses and identification cards that do not meet standards set by the DHS. The REAL ID standards represent generally accepted best practices among the motor vehicle agency community to reduce identity theft and fraud. In December 2013, the DHS announced how REAL ID would be enforced, starting at its headquarters and federal facilities and expanding to airports in 2016. Once the DHS enforces REAL ID at the airports, the TSA will be prohibited from accepting driver’s licenses from noncompliant states and alternative identification will be required for their driver’s license holders.

The act itself is only compelling on the federal government, not the states. REAL ID empowers the state to choose if it wants to comply. A few states, such as Louisiana and New Hampshire, have exercised the right to not comply. New Hampshire passed legislation in 2007 (before the REAL ID final rule was published) prohibiting the state from implementing the REAL ID standards. New Hampshire reaffirmed its opposition this year, when legislation that would have provided residents with the option of obtaining a REAL ID credential was voted down. Similarly, Louisiana passed legislation to prohibit implementation of REAL ID in 2008. Last summer, Gov. Bobby Jindal vetoed legislation (even though it was supported by the Department of Public Safety) in the summer of 2014 that would have allowed the state to move forward with the REAL ID standards. In both cases, each state exercised its right to determine whether to move forward with the REAL ID Act, and reaffirmed that position, making future efforts to change state policy unlikely.

However, in spite of these states’ choice to prohibit REAL ID implementation, several members of Congress pressured the DHS into granting those states an extension to meet the REAL ID standards. In a letter dated Oct. 5, just five days before the most recent phase of enforcement took effect, the Louisiana congressional delegation wrote to DHS Secretary Jeh Johnson “in support of the Louisiana State Police’s request for a compliance deadline extension regarding the new requirements under the REAL ID Act of 2005.”

Sens. Kelly Ayotte, R-N.H., and Jeanne Shaheen, D-N.H., also “encouraged” the DHS to work with New Hampshire in a letter and in language included in a recent appropriations bill. Both delegations acknowledged that their respective states have passed legislation prohibiting implementation and yet request that the DHS work with them to secure additional extensions.

But that is all the DHS is statutorily empowered to do: grant extensions. By design, states retain the authority to issue driver’s licenses under the REAL ID Act, and ultimately that is where pressure should be applied. No one can blame the members of Congress for getting involved on their state’s behalf. Each has their own constituency to represent and no one likes the idea of headaches at the airport. However, the problem is that extensions prolong implementation.

REAL ID is about all the states’ driver’s licenses and when one state lags behind or delays implementation, the state of the security of identification in the United States is weaker, not stronger. Members of Congress should work with their respective states on compliance, because ultimately that is where REAL ID policy is made.

Andrew Meehan is the policy director at Keeping IDentities Safe.

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