A Choice That Leaves No Choice: Unconstitutional Coercion Under Real Id

• Publication year: 2008

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 32, No. 1FALL 2008

A Choice that Leaves No Choice: Unconstitutional Coercion Under Real ID

Michael J. Allen(fn*)

I. Introduction

After the tragic events of September 11, 2001, Congress enacted The Real ID Act of 2005 ("Real ID" or "Act") in response to national security concerns and, in particular, unreliable standards for driver's licenses and identification cards.(fn1) Notwithstanding congressional intent, Real ID faces serious opposition across a wide spectrum of political interests-from information privacy advocates and opponents of expansive federal government to proponents of immigrant rights.(fn2) Several state legislatures have enacted either objections to or rejections of Real ID's licensing requirements, while other state legislatures have introduced similar bills for debate.(fn3)

Despite calls to repeal the Act, some states still plan to comply.(fn4) The Department of Homeland Security (DHS), the federal agency responsible for implementing the statute and enforcing compliance, remains resolute in its commitment to implement the licensing provisions. DHS issued final regulations on January 29, 2008.(fn5) Although these regulations take into consideration over 21,000 public comments,(fn6) public concern persists.(fn7) Governor Brian Schweitzer of Montana has urged a third of the nation's state governors to join him in opposing the implementation of Real ID.(fn8) Despite this opposition, however, on January 1, 2010, citizens of states not in compliance with the mandatory minimum requirements of Real ID may not use state-issued driver's licenses or identification cards to pass airport security or to access certain federal facilities.(fn9)

Real ID restricts using driver's licenses or other identification cards for federal purposes, such as air travel, unless the states issuing the documents comply with Real ID's requirements.(fn10) State-issued driver's licenses are currently the de facto standard identification document within the United States.(fn11) Citizens and other residents most frequently rely upon driver's licenses to establish personal identity and obtain other forms of identification.(fn12) Because states produce licenses using different standards and procedures, proponents of Real ID argue that relying upon state-issued driver's licenses for personal identification creates a security risk that only federal standards can mitigate.(fn13) In response, states opposing Real ID protest that the Act is an attempt by the federal government to coerce state compliance with federally mandated standards for driver's licenses, resulting in a de facto national identification system.(fn14)

States should challenge the Real ID under the federalism principles enshrined in the Tenth Amendment, although the Act's driver licensing provisions infringe on both individual and state constitutional rights. A state challenge under the Tenth Amendment is more likely than modern individual rights jurisprudence to succeed in striking down Real ID. Arguing that the federal government impermissibly coerces state action under the Act will better protect both states and individual rights and succeed in having the Act overturned.

Part II of this Comment provides a historical context for the enactment of Real ID and describes its reception by the states. Part III surveys relevant principles of constitutional federalism and discusses three Supreme Court cases commonly cited by states opposing the Act. Part IV argues that the statutory scheme under Real ID interferes with state sovereignty protected by the Tenth Amendment and potentially violates fundamental individual constitutional rights. Finally, Part V concludes that judicial enforcement of the Tenth Amendment in the context of Real ID vindicates both the integrity of state governments and important rights of state citizens.

II. Background

Before considering the constitutional concerns with the driver licensing provisions in Real ID, one must understand the history surrounding public resistance to national identification cards and the enactment of Real ID. This Part describes the historical opposition toward a national identification system in the United States and analyzes the primary provisions of the Act, its implementing regulations, and the opposition these provisions face from state governments.

A. National Identification Resistance and the Enactment of Real ID

The debate over whether to implement a national identification card is not new. The federal government introduced Social Security numbers (SSN) in 1936 to serve as account numbers for Social Security benefits.(fn15) Although the use of the SSN has expanded considerably, particularly in the age of electronic commerce, politicians and the public have consistently rejected efforts to make them universal identifiers.(fn16) During his administration, President Reagan strongly opposed a proposal by the Attomey General that an identification card system was necessary to reduce illegal immigration.(fn17) Congress has struck down similar proposals to improve the integrity of Social Security cards by converting them into photo identification.(fn18)

Public resistance toward a national standardization of identification documents endures today. For example, a section of the Illegal Immigration Reform and Immigrant Responsibility Act of 1999 (IIRIRA) (fn19) imposed federal standards for state driver's licenses and birth certificates used as identification for federal purposes.(fn20) The section met widespread public criticism, with opponents alleging that its passage was a step toward a national identification system.(fn21) The subsequent enactment of Real ID has rekindled heated opposition against standardizing identification documents.

Historically, states control the licensing of drivers within their territories. Before the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) passed,(fn22) states were completely responsible for determining the standards for driver's licenses and personal identification cards.(fn23) Even with the passage of IRTPA, most licensing standards remained subject to the discretion of state and local governments.(fn24) The federal government, however, perceives security vulnerability in this patchwork of differing state standards for driver's licenses.(fn25) Real ID attempts to make licensing processes more secure by requiring uniformity from the states.(fn26)

To address these security concerns, Representative F. James Sen-senbrenner (R-Wisconsin) introduced the Act(fn27) as a measure that would disrupt terrorist travel and prevent another terrorist attack like the one on September 11th.(fn28) The bill passed the House but encountered resistance in Senate committee.(fn29) Ultimately, Congress tacked the text onto an emergency supplemental appropriations bill that included funding for the war in Iraq and tsunami victims in Southeast Asia.(fn30) The bill passed the House by a 368-58 vote(fn31) and passed the Senate unanimously, although some members urged removal of the Real ID provisions.(fn32)

B. The Provisions of Real ID and Proposed Implementing Regulations

Real ID restricts the use of state-issued driver's licenses or identification cards for federal purposes unless states implement the Act's licensing requirements. The Act mandates that the states comply with standards affecting the issuance and appearance of driver's licenses and identification cards and maintain motor vehicle databases that contain specific personal information about state citizens.

Section 202 is the meat of Real ID. It provides: "Beginning three years after the date of the enactment of this division, a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a state to any person unless the state is meeting the requirements of this section."(fn33) The Act expressly repeals the previous Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), (fn34)which had included potentially conflicting provisions regarding national standards for driver's licenses.(fn35) Although Real ID does not directly impose federal standards upon the states, state governments must adopt federal standards and modify any conflicting laws to ensure that state driver's license or identification cards are recognized for official federal purposes.(fn36) Specifically, the Act requires particular (1) eligibility criteria, (2) procedures, and (3) database sharing.

First, to issue a driver's license or identification card, the Act requires states to verify the issuance, validity, and completeness of certain personal identification documentation or personally identifiable information.(fn37) Furthermore, in a significant change from the status quo, states must also verify an applicant's lawful status in the United States before issuing a driver's license or identification card.(fn38) The Act identifies several categories of lawful status, many of which are temporary immigration statuses subject to DHS jurisdiction.(fn39) It also establishes a system of temporary driver's licenses and identification cards for issuance to certain temporary residents and sets the maximum validity period for any regular driver's license at eight years.(fn40)

Second, Real ID mandates particular licensing procedures.(fn41) Even the physical appearance of a driver's license or...