Limited government: ave atque vale.

• Author: Twight, Charlotte

For those who prize liberty, May and June 2005 were dark months. In that brief span, three pillars of liberty were destroyed, perhaps forever. (1) The U.S. Congress in May mandated a uniform national identification card for virtually all Americans. In early June, the U.S. Supreme Court embraced the broadest definition ever of the Interstate Commerce Clause (Art. I, sec. 8, clause 2). Less than three weeks later, the same court eviscerated the Takings Clause of the Fifth Amendment. If anyone still doubted the direction in which government power is heading in the United States, these decisions surely dispel such doubts.

The latest assaults on liberty are all the more dismaying because of the manner in which they became law. As we will see, government decision makers could impose these changes on society only by using tactics that made a mockery of both constitutionally mandated procedure and consensual legislative deliberation. As a result, the Constitution in July 2005 differed substantially from the one in force two months earlier, though its wording remained unchanged.

Had the Founders and the states originally contemplated, as we now do, a constitution without the protections of the Takings Clause and the Interstate Commerce Clause, they would not have endorsed it. Nor would they have accepted the Constitution had they understood it to allow the central government to require uniform national identification cards for all Americans. By construing the Constitution to embrace ends contrary to its original meaning without formal amendment of the document, the Supreme Court and Congress have turned the Constitution into some thing that--in the disparity between its words and its application--ever more closely resembles the "constitutions" of authoritarian regimes around the world.

The line separating what is ceded to national government control and what is reserved to autonomous private decision making is a fundamental determinant of a nation's liberty and prosperity. The recent decisions by the Court and Congress have moved that line in a direction that supports a growing American Leviathan. No longer bulwarks of a system of limited government, these bodies now serve predominantly to strengthen the institutional underpinnings of a total state. Accustomed as Americans have become to the unrelenting expansion of central government power throughout much of the past century, the recent changes are breathtaking, as were the strategies used to adopt them.

The New National ID Card

On May 11, 2005, President George W. Bush signed into law the REAL ID Act (Public Law 109-13, Division B, 119 Stat. 302), setting in motion a national identification card system that far exceeds the more limited national ID functions of the Social Security card. The new law aims to transform state drivers' licenses into uniform national identification cards with features that conform to the central government's requirements, bringing to fruition a government effort initiated with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Twight 1999, 172-73). (2) The relevant provisions appear in Title II of the REAL ID Act, titled "Improved Security for Drivers' Licenses and Personal Identification Cards." (3)

The statutory language downplays and obscures the breadth of the new identification provisions. The pitch is that the federal government seeks only to make our drivers' licenses more secure from the twin threats of terrorism and identity theft and that, in any case, states are not forced to comply. Although both claims are false, their usefulness in reducing resistance to the new identification procedures is obvious. Even Congress's decision to piggyback the new ID requirements on the familiar state driver's license reduces public resistance, making the changes appear less threatening than would a new card with its own title. The program's decentralized implementation, slated to occur over time as drivers renew their licenses at state Department of Motor Vehicles (DMV) offices, also mutes the resistance. Like the local civilian draft boards employed first during World War I (Higgs 1987, 133-34), the state DMV offices will deflect opposition away from the federal architects of this national ID card program.

Effort to craft the law so as to reduce resistance is even more evident in the statutory language that soon will require almost every American to obtain and carry a national ID card. Ironically, the relevant provision of the REAL ID Act does not say "everyone must" have a government-approved identification card. Instead, it accomplishes substantially the same end by making noncompliance prohibitively costly and by defining key statutory terms in ways that create the functional equivalent of a universal mandate. Window dressing aside, as Senator Lamar Alexander (R., Tenn.) stated, REAL ID "really is a national identification card for the United States of America for the first time in our history" (Cong. Rec., Senate, May 10, 2005, $4819).

In language that camouflages the statute's full import, the pivotal provision establishing "minimum standards for federal use" of state drivers' licenses states: "Beginning 3 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" (REAL ID Act 2005, Title II, sec. 202[a], 199 Star. 312, emphasis added). The scope of this provision clearly depends on what counts as an official purpose. If that term were defined narrowly, then the federal agencies' refusal, beginning in 2008, to accept anything other than the national ID for an official purpose would have little impact on Americans. If it were defined broadly, however, the statutory mandate would effectively require all Americans to submit to the government-approved identification process.

What may be deemed an official purpose according to the terms of the REAL ID Act? Congress has defined official purpose in an utterly open-ended fashion: "The term 'official purpose' includes but is not limited to accessing Federal facilities, boarding federally regulated commercial aircraft, entering nuclear power plants, and any other purposes that the Secretary [of the Department of Homeland Security (DHS)] shall determine" (REAL ID Act 2005, Title II, sec. 202[a][1], emphasis added). In short, the DHS secretary has unlimited discretionary authority to deem any purpose whatsoever an "official purpose."

Even before passage of this measure, senators and representatives mentioned bank transactions as falling within the definition given here. And why not? Given that the term official purpose explicitly includes boarding federally regulated commercial aircraft, using anything that the federal government regulates also could be deemed an "official purpose." In 2005, federal regulation touches almost everything. The House-Senate conference report added that "official purpose" includes "hav[ing] access to federally regulated critical infrastructure or similar facilities determined to be vulnerable to attack" (U.S. House of Representatives 2005, H2873). We need not quibble about the fine points, however. Refined distinctions are beside the point when the statutory language gives the DHS secretary plenary authority to sweep any purpose he desires into this definition, with or without a strong federal nexus.

The list of recognized official purposes will grow as the law is implemented. As it grows, the pretense that the national ID card is optional, either for individuals or for states, will be stripped away by the emerging reality that one cannot live a normal life involving work, travel, taxes, family, banking, and commerce without submitting to the federally specified identification procedures. More concerned with personal convenience and the mirage of security than with the growing scope of federal power, most Americans will demand that their state comply, if it has not already.

What about the card's content? The REAL ID Act enumerates certain "minimum document requirements" or attributes that the new driver's license (as national ID card) must have in order to be acceptable to the federal government. Like the minimum standards for federal use, these requirements are described in a way that makes them seem narrower than they are. First, the act requires the card to show the person's name, sex, address of principal residence, place of birth, driver's license or identification card number, digital photograph, and signature. In the context of this law, even these items are not innocuous. Concerns already have been raised about the dangerous consequences of the requirement that victims of domestic violence display their home address on the front of the card when they need to conceal that address from an abusive spouse or other assailant. Moreover, the required digitized photograph and signature are the leading edge of the coming wave of nationwide biometric identification in the United States. Because the REAL ID Act empowers the DHS secretary (with the participation of the secretary of transportation and the states) to formulate regulations to implement the rules, the required elements will grow (REAL ID Act 2005, Title II, sec, 205). As Declan McCullagh has pointed out, the secretary "is permitted to add additional requirements--such as a fingerprint or retinal scan," to the existing minimum requirements (2005).

Other worrisome elements of the minimum document requirements involve mandatory "physical security features" and the use of machine-readable technology. The federal endgame here is to require new types of biometric identifiers and to mandate technology that will enable biometric and other information about individuals to be readily transmitted and stored in databases that can be linked nationwide. The statutory language does not state this...