2005’s REAL ID Act is a federal law that, according to the Department of Homeland Security, establishes “minimum security standards for state-issued driver’s licenses and identification cards and prohibits Federal agencies from accepting for official purposes licenses and identification cards from states that do not meet these standards.”
The phrase “official purposes” basically refers to admittance to federal facilities (like military bases and federal courthouses), airports and nuclear facilities. However, it is also defined as “any other purposes” that the Secretary of Homeland Security dictates. The law was adopted in accordance with the 9/11 Commission’s recommendation.
To be clear, there are certain things the law does not cover. Places primarily under state jurisdiction (like the state capitol and non-federal courthouses) do not need REAL ID Act compliant IDs unless a state specifically requires it.
One does not need a REAL ID Act compliant ID in order to vote or to receive federal benefits. Also, one does not need one for federal facilities that do not require an ID in the first place.
There are numerous standards that the REAL ID Act sets. Among them are what appears on a state license, what documents are required to obtain a license, how states go about verifying those documents and how long the documents are retained. Of those, the documents required for a license would probably be the most obvious to the public since everything else happens “behind the scenes.”
For an adult in Oklahoma who is obtaining a license for the first time, one just needs two forms of identification, a “primary” and “secondary” document. The primary document is usually a birth certificate, and the secondary document is usually a social security card. However, there are many other documents that can be used, they just are not as common.
In contrast, the REAL ID Act requires evidence of one’s current address and of having lawful status in the United States. It also requires a photo ID, but an ID without a photograph would still be acceptable if it had both one’s full name and one’s date of birth, so that “requirement” is not all that different than a birth certificate.
The law is being implemented in stages, largely at the discretion of the Secretary of Homeland Security. Additionally, states can be given extensions. However, by October 1, 2020, all air travelers will need a REAL ID Act compliant ID.
However, even if a state is still not compliant with the REAL ID Act by then, that does not necessarily mean that its citizens will not be able to fly. Other forms of ID are currently accepted by the TSA and would continue to be. Examples are passports, passport cards, military IDs and tribal IDs. However, these are all usually harder to get than a driver’s license, so while flying would still be possible, it would be much more inconvenient to get the necessary documents.
Only twenty-four states are in full compliance. One reason for states waiting to comply is that there is controversy about the law. There is concern that it would constitute a de facto national ID because the standards are national and the state databases are required to be linked. Under America’s federal system, the power to issue IDs for driver’s licenses has always been understood to be a state power.
A national ID also concerns both groups on both the right and the left, for increasing the power of the federal government and for civil liberties concerns, respectively. The Oklahoma Republican Party platform states that the REAL ID Act “is unconstitutional and amounts to an unprecedented grant of power to government in general, and the federal government in particular.”
As part of a 2008 statement against the law, the Maryland ACLU stated that the REAL ID Act “places no limits on potential required uses for Real IDs. In time, Real IDs could be required to vote, collect a Social Security check, access Medicaid, open a bank account, go to an Orioles game, or buy a gun. The private sector could begin mandating a Real ID to perform countless commercial and financial activities, such as renting a DVD or buying car insurance. Real ID cards would become a necessity, making them de facto national IDs.”
It should be noted that it is difficult to assess the law at this point. It was passed to improve security, and in a more interconnected country and world, having some federal standards makes sense. However, most states are not even fully compliant, so any improvement in safety would necessarily be in the future.
On the flip side, fears of the REAL ID Act leading to a de facto national ID policy are largely fears of it growing in scope to be required more often than the REAL ID Act requires. Expansion is not the only fear, but it appears to be the most prominent. Such fear should not be dismissed, either. It is the tendency of government authority to expand (especially when a single bureaucrat, the Secretary of Homeland Security, has the authority to decide when such IDs are required). Still, fears of expansion are fears of what the law will become, not what it is.
No matter the controversy, though, there does not seem to be any momentum in the federal government to repeal the law. So, what are states to do? The best option would be to create a two-tier system of IDs. The main tier would be REAL ID compliant. This would allow those citizens who aren’t worried about the threat of a national ID, or at least not enough to stop flying, to have an ID that will allow them to fly and to go to federal facilities.
However, a second tier of ID that is not REAL ID Act compliant would allow those citizens who think that the act is either unconstitutional as it is or that it creates a slippery slope to continue to drive, even though they could no longer fly.
Also, since having lawful residence is a requirement for a REAL ID Act compliant ID, undocumented immigrants would be unable to get one. Assuming that a state is going to offer driver’s licenses to undocumented immigrants in the first place, the only possible option would be the second tier. This two-tier system is specifically allowed in the REAL ID Act. The second tier just has to have a special marking that it is noncompliant.
For people who fully oppose the REAL ID Act, such a system is still probably far less than ideal, especially since states would still have to keep their information in a database. However, a two tier system at least allows those who don’t care enough to stop flying to have a compliant ID. Stopping the larger principle behind the REAL ID Act would require repeal.