One Mile at a Time says “If you have a driver’s license from New York, Louisiana, Minnesota, or New Hampshire, you may soon need a second form of ID to get through Transportation Security Administration checkpoints.”
What the Real ID Act Requires
The Real ID Act regulates, among other things, what state identification will be valid for federal purposes. Those federal purposes including identifying oneself to the Transportation Security Administration in order to board commercial aircraft. And several state drivers licenses do not comply with those rules.
A ‘real ID compliant’ license has to have a person’s full legal name, signature, date of birth, gender, a unique identifying number, home address, and a front-facing photo.
There are also specific anti-counterfeiting measures that must be used, and rules on providing the data on the card in a standard machine-readable format.
Prior to issuing a r’real ID compliant’ license, a state has to require:
- A photo ID (they make you present a photo ID to get a photo ID..) or ID that includes full name and birth date
- Documentation of birth date (usually a birth certificate)
- Proof of legal status (you’re not an illegal alient) and social security number (something you didn’t even have to have when I was born)
- Documentation of your residential address
Basically, getting a drivers license — especially without already having one — has become a real pain.
States have to store digital copies of these documents as well. States also ahve to share these databases with all other states.
Very Few States Are Actually Complying
The timeline for requiring compliance with the Real ID Act for air travel is 2016, but that does not mean compliance will actually be required in 2016.
Only 23 states and territories are actually compliant with Real ID rules. 28 have filed extensions. American Samoa, Louisiana, Minnesota, and New Hampshire have neither complied nor obtained extensions to comply.
The Federal Government Isn’t Going to Prevent People From Flying Over Real ID Any Time Soon
Lucky does note “I have a hard time imagining this will be implemented” for air travel and I think that’s right. It seems clear that:
- It would be a huge political nightmare for the administration to either deny travel to the majority of people in four states – including New York! – or force them all to go through secondary screening. Stories of people being turned away from a trip to a family member’s funeral, or of security lines wrapped out the doors of JFK airport, would fill the airwaves.
- The government would get bogged down in tremendous litigation, to the extent that they were imposing new and substantial burdens on citizens’ right to travel.
Real ID Places Real and Substantial Limits on Freedom
Lucky dismisses the constitutional argument, so I assume he must be persuaded by the political expediency one.
Some would argue there are constitutional issues with restricting freedom of movement within a country, though I’m not sure I totally buy that as an argument against IDing at airports, since there are other ways you can move around the country which don’t require ID.
The Real ID act was passed as a rider to an emergency Iraq war and Tsunami relief appropriations bill in the House and inserted into a matching bill on the Senate side during conference to reconcile the two legislative bodies’ versions. The Senate never discussed Real ID via committee hearings and never voted on Real ID as standalone legislation.
During the 2008 elections President Obama opposed the law, and Hillary Clinton called for it ‘to be reviewed’. She doesn’t want her adopted home state’s citizens hassled in their travels by the Obama administration while running to succeed it herself.
Denying passengers access to flights because their drivers licenses no longer constitute valid identification would be a political problem. But the constitutional problems are just as real and I think Lucky is wrong to dismiss them.
Far be it for me to suggest which way a 5-4 or 6-3 divided Supreme Court might ultimately split on the issue, but it seems that the substantive issues are at a minimum meaningful concerns.
- TSA has intermittently performed security checks at Amtrak stations.
- They’ve positioned themselves even at DC area metro stations.
- If the government can substantially burden one form of travel, they can burden any other. It’s unlikely to be the case that the mere fact that they haven’t (yet?) chosen to burden all would be a meaningful test.
ID checks were common prior to 9/11. Airlines used to ask for ID to make sure the person traveling was the one that bought the ticket, solely to restrict the resale market for airfare in order to support revenue management systems that increased the price of travel closer to departure (to prevent people from buying tickets cheap and reselling them as travel dates approached — still undercutting the airline’s price).
Now the government does the airline’s work for them, ostensibly for security but a determined terrorist (the TSA has never caught a single one) doesn’t have much problem flying with fake documents.
The ‘security purpose’ of ID checks is to try to force people to fly under their real names, so that those names can be checked against the government’s watch and do not fly lists. Anyone on such a list, intent on committing a terrorist act, would simply choose not to fly under their own name.
Nonetheless, it’s the system supporting those lists that is constitutionally problematic and that imposes substantial burdens on the right to travel.
- People get added to the ‘do not fly list’ without any due process proceeding
- It’s not necessary to commit any any disqualifying acts to be on that list (mere suspicion that someone might do something in the future)
- You cannot confront your accuser
- There’s almost no meaningful and timely redress procedures (you can apply for a redress number but the government won’t even tell you if you need one or what the outcome of their investigation is)
And that’s burdensome on the right to travel. The mere existence of alternative slower methods – permitted today, by the graces of those in charge of ‘security’ – doesn’t alleviate that.