No, the Government Isn’t Going to Forbid All New Yorkers From Flying Next Year. Why Do You Ask?

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:

  1. 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.

  2. 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.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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  1. The Real ID act, the ridiculous requirement to show ID to fly, and these other constitutional issues are horrifying…yet so few people seem concerned among the general public. Is it a lack of awareness? Inability to grasp the fundamental issues? Or a “anything for security because….’Murica” mentality?

    Even just restricting air travel impedes domestic travel, if you think about the locales where it is nearly impossible – or impossible without substantial time and expense – to travel to another locale within the United States via anything but air travel.

  2. I recently flew domestic in Australia! Like the good old days! No ID, quick simple security for anyone. Our friends were able to meet us at the gate! Wow , we’ve forgotten our rights!

  3. @traveler When my wife and I flew to multiple cities in Australia last fall, we kept thinking we were in a time warp. No war on shoes, no war on water and no nudeoscopes just normal security. It was a pleasure to travel. That pleasure ended when we were heading back to the U.S., multiple I’d checks, no shoes, no water……………………

  4. Ah Australia, the security is one of the many things that make my almost weekly MEL-SYD commute a breeze (add minimal weather or mechanical delays, planes every 15 minutes when it counts, free lounge acces, acceptable hot food in economy and the fact that a taxi to he airport takes 20 minutes).

    I was thinking only the other week that if I were still in Pittsburgh and doing the same thing, say to DCA, every week my life would be miserable.

    Now I’ve switched to a surface I don’t even have to take my laptop out of the bag.

  5. It’s kinda funny to me that in a country that (in most states) you don’t have to show ID to vote, they are so hardcore about ID when flying.

  6. Is there anything as a voter to stop this fascist scope-creep of the federal government? Stupid slavery ruining it for everyone.

  7. Thanks for a more complete treatment of the issue than the other bloggers have done.

    It seems like every few years the feds threaten to start enforcement and in the end they back down so I won’t be surprised if this is the case yet again.

    However you had a few misses as well:
    1.)You didn’t mention the fact that the “enhanced” drivers licenses issued by New York and Minnesota are Real ID compliant, so not everyone in those states will be effected if they actually start enforcement next year.
    2.)You also failed to mention that the Real ID act did go through a a full house committee and was passed as standalone legislation, it was only after it stalled going through the Senate that it was attached as a rider. You further failed to mention that the driver’s license standards come from recommendations made by the 9/11 commission.
    3.)When discussing the 2008 election, Obama wasn’t president, so Hillary couldn’t have been trying to succeed his administration. You also seemed to imply that Hillary’s concern was the impact on travelers in her “adopted state”, in reality her concern was related to the requirement that all license applicants prove legal status.

    I have to disagree with your assertion that “Real ID places real and substantial limits on freedom”. While you provide solid reasons why the “no fly” and other lists restrict individuals from being able to travel (and therefore limit their freedom), your attempt to link Real ID to them is tenuous at best. The use of the “no fly” and other lists as well as the ID requirement comes from the TSA Secure Flight program which was established in 2008 based requirements of the Intelligence Reform and Terrorism Prevention Act which Congress passed in 2005. The limits you mention exist whether or not the TSA starts requiring Real ID at checkpoints and will continue to exist even if TSA never starts requiring Real ID.

    The real question when it comes to whether or not Real ID as you assert “creates a real and substantial limit to freedom” would be determined by the policy used to determine what a valid secondary ID is. Realistically though, if that becomes an issue, I see the courts requiring the 4 states to comply with Real ID.

    As to your assertion that terrorists would fly under assumed names, firstly the intent of Real ID is to make it harder to do so. Secondly that idea flies in the face of history. Even though we have had a no-fly or selective screening list since before 9/11, the 9/11 terrorists, the shoe bomber, the underwear bomber, and the times square bomber all flew under their real names. The Times Square bomber was caught before fleeing the country precisely because his name was put on the no-fly list.

    While I totally agree that the management of the process is a failure, the concept along makes sense in a security context.

  8. @omatravel the whole point of requiring ID is so that a person’s “real” name is used, and therefore matches in secure flight are meaningful. And secure flight, which is used to identify targets for advanced screening and denial of boarding, is a substantial burden on the right to travel because it denies due process for those affected as I describe in the post.

    I didn’t think it was especially relevant that the law was debated and passed in the house in conjunction with noting that it was a rider attached in conference to a must-passed bill that never had a hearing in the senate. And in any case, you ‘fail to note’ that Real ID repeals the drivers license provisions of the Intelligence Reform and Terrorism Prevention Act aka the “9/11 Commission Implementation Act of 2004”.

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