The REAL ID Act of 2005: Legal, Regulatory, and Implementation Issues

Congressional research reportApr 1, 2008

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Prepared for Members and Committees of Congress

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In 2005, Congress addressed the issue of national standards for drivers’ licenses and personal

identification cards by passing The REAL ID Act of 2005 (REAL ID). The act contains a number

of provisions relating to improved security for drivers’ licenses and personal identification cards,

as well as instructions for states that do not comply with its provisions. In general, while REAL

ID does not directly impose federal standards with respect to states’ issuance of drivers’ licenses

and personal identification cards, states nevertheless appear compelled to adopt such standards

and modify any conflicting laws or regulations to continue to have such documents recognized by

federal agencies for official purposes.

Both at the time that REAL ID was debated in Congress, and during the regulatory comment

period, questions about the constitutionality of the statute have been raised. There have been four

main constitutional arguments made against REAL ID. First, because REAL ID cannot be

premised on Congress’s power to regulate interstate commerce, it is a violation of states’ rights as

protected by the Tenth Amendment. Second, the requirement that REAL IDs be used to board

federally regulated aircraft impermissibly encroaches on citizens’ right to travel. Third, specific

requirements such as the digital photograph potentially violate the Free Exercise Clause of the

First Amendment. Finally, REAL ID infringes upon a citizen’s right under the First Amendment

to freely assemble, associate, and petition the government.

Since its adoption in 2005, REAL ID has been a highly contested issue among state legislatures

and governors. According to some advocacy groups, state and federal elected officials—including

numerous commentators to the proposed regulations—and other interested parties, REAL ID

imposes an unconstitutional “unfunded mandate” on the states. Prior to the publication of the

proposed rule in 2007, however, there was little activity at the state-lawmaking level, primarily

because officials were uncertain as to precisely what the implementation requirements were going

to necessitate, either in terms of cost or potential changes to state law. Since the publication of the

proposed rule in 2007, there has been a dramatic increase in state responses to REAL ID and its

requirements.

The final regulations were promulgated by the Department of Homeland Security (DHS) on

January 29, 2008, and contain 280 pages of explanation as well as responses to over 21,000

comments. This report contains a summary description and analysis of several of the major

elements of the REAL ID regulations.

Finally, this report will address REAL ID in relationship to other federal laws and identification

programs. This report will be updated as events warrant.

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History and Background.................................................................................................................. 1

Statutory Provisions and Requirements of REAL ID...................................................................... 3

Minimum Issuance Standards ................................................................................................... 3

Evidence of Legal Status........................................................................................................... 3

Temporary Drivers’ Licenses and Identification Cards............................................................. 3

Other Requirements .................................................................................................................. 4

Trafficking in Authentication Features for Use in False Identification Documents.................. 5

Additional Provisions................................................................................................................ 5

Promulgation of Regulations..................................................................................................... 5

Constitutional Questions ................................................................................................................. 6

Tenth Amendment ..................................................................................................................... 6

Right to Travel........................................................................................................................... 8

First Amendment Rights ......................................................................................................... 10

Free Exercise of Religion.................................................................................................. 10

Right to Assemble and Petition the Government and the Right to Anonymity................. 12

“Unfunded Mandate” Issues.......................................................................................................... 13

Time Line For State Implementation............................................................................................. 15

State Legislative Responses and Potential Issues for Citizens of Non-Compliant States ............. 16

Selected Regulatory Requirements of REAL ID........................................................................... 19

Full Legal Name...................................................................................................................... 19

Principal Residence................................................................................................................. 20

Document Verification Requirements ..................................................................................... 21

Machine-Readable Technology............................................................................................... 22

Document Storage................................................................................................................... 23

Physical Security of Motor Vehicle Facilities ......................................................................... 24

DMV Databases ...................................................................................................................... 24

Background Checks ................................................................................................................ 25

Additional Issues ........................................................................................................................... 27

National Identification Card.................................................................................................... 27

Issuance of Drivers’ Licenses and Personal Identification Cards to Non-Citizens

and/or Undocumented Persons............................................................................................. 28

Relationship of REAL ID to Other Federal Laws and Programs .................................................. 29

Western Hemisphere Travel Initiative (WHTI)....................................................................... 29

Enhanced Driver’s Licenses (EDLs)....................................................................................... 30

Author Contact Information .......................................................................................................... 31

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Prior to the passage of the Intelligence Reform and Terrorism Prevention Act of 2004,1 standards

with respect to drivers’ licenses and personal identification cards were determined on a state-bystate basis with no national standards in place. In fact, prior to September 11, 2001, legislation

aimed at discouraging national standards for identification documents had gained bipartisan

support and was thought likely to pass.

Congressional action regarding national standards for state-issued identification documents

before September 11, 2001, had proved to be highly controversial. For example, § 656 of the

Illegal Immigration Reform and Immigrant Responsibility Act of 19962 provided federal

standards for state drivers’ licenses and birth certificates when used as identification-related

documents for federal purposes. Under this provision, a state had two choices. The state could

require that each of its licenses include the licensee’s Social Security number in machine-readable

or visually readable form. Alternatively, a state could more minimally require that each applicant

submit the applicant’s Social Security number and verify the legitimacy of that number with the

Social Security Administration. The section became subject to widespread public criticism shortly

after its enactment with opponents most frequently alleging that it could be construed as a step

toward a national identification card system. In response, Congress prohibited funding to

implement regulations aimed at assisting the states to adopt the Social Security number

requirements, and the underlying requirement itself was subsequently repealed in § 355 of the

Department of Transportation and Related Agencies Appropriations Act 2000.3

After the events of September 11, 2001, the prevailing view of national standards for so-called

“breeder documents,” which includes, but is not limited to, drivers’ licenses and personal

identification cards, changed. Specifically, the final report of The National Commission on

Terrorist Attacks Upon the United States (9/11 Commission) recommended that “the federal

government should set standards for the issuance of birth certificates, and sources of

identification, such as drivers’ licenses.”4 Responding to this recommendation, in 2004 Congress

enacted The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). This act

delegated authority to the Secretary of Transportation, in consultation with the Secretary of

Homeland Security, empowering them to issue regulations with respect to minimum standards for

federal acceptance of drivers’ licenses and personal identification cards.5

Pursuant to the IRTPA, the Secretary was required to issue regulations within 18 months of

enactment requiring that each driver’s license or identification card, to be accepted for any

Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458 §§ 7211-7214,

118 Stat. 3638 (2004) [hereinafter IRTPA].

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208 §

656, Division C, 118 Stat. 3638 (1996).

Department of Transportation and Related Agencies Appropriations Act, 2000, P.L. 10669 § 355, 113 Stat. 986 (2000).

THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON

TERRORIST ATTACKS ON THE UNITED STATES, 390 (2004).

See IRTPA, supra note 1 at § 7212.

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official purpose by a federal agency, include the individual’s (1) full legal name, (2) date of birth,

(3) gender, (4) driver’s license or identification card number, (5) digital photograph, (6) address,

and (7) signature.6 In addition, the cards were required to contain physical security features

designed to prevent tampering, counterfeiting, or duplication for fraudulent purposes; as well as a

common machine-readable technology with defined minimum elements.7 Moreover, states were

required, pursuant to implementing regulations, to confiscate a driver’s license or personal

identification card if any of the above security components were compromised.8

The statute also required that the implementing regulations address how drivers’ licenses and

identification cards were issued by the states. Specifically, the regulations were required to

include minimum standards for the documentation required by the applicant, the procedures

utilized for verifying the documents used, and the standards for processing the applications.9 The

regulations were, however, prohibited from not only infringing upon the “State’s power to set

criteria concerning what categories of individuals are eligible to obtain a driver’s license or

personal identification card from that State,”10 but also from requiring a state to take an action

that “conflicts with or otherwise interferes with the full enforcement of state criteria concerning

the categories of individuals that were eligible to obtain a driver’s license or personal

identification card.”11 In other words, it appeared that if a state granted a certain category of

individuals (i.e., aliens, legal or illegal) permission to obtain a license, nothing in the

implementing regulations was to infringe upon that state’s decision or its ability to enforce that

decision. In addition, the regulations were not to require a single uniform design, and were

required to include procedures designed to protect the privacy rights of individual applicants.12

Finally, the law required the use of negotiated rulemaking pursuant to the Administrative

Procedure Act.13 This process was designed to bring together agency representatives and

concerned interest groups to negotiate the text of a proposed rule. The rulemaking committee was

required to include representatives from (1) state and local offices that issue drivers’ licenses

and/or personal identification cards, (2) state elected officials, (3) Department of Homeland

Security, and (4) interested parties.14

In 2005, Congress again addressed the issue of national standards for drivers’ licenses and

personal identification cards by passing The REAL ID Act of 2005 (REAL ID).15 REAL ID

contains a number of provisions relating to improved security for drivers’ licenses and personal

identification cards, as well as instructions for states that do not comply with its provisions. In

Id. at § 7212(b)(2)(D)(i)-(vii).

Id. at § 7212(b)(2)(E)-(F).

Id. at § 7212(b)(2)(G).

Id. at § 7212(b)(2)(A)-(C).

Id. at § 7212(b)(3)(B).

Id. at § 7212(b)(3)(C).

Id. at § 7212(b)(3)(D)-(E).

See Negotiated Rulemaking Act of 1990, P.L. 101-648, 104 Stat. 4970 (1990) (codified

as amended at 5 U.S.C. §§ 581 et seq.).

See IRTPA, supra note 1 at § 7212(b)(4)(A)-(B).

See Emergency Supplemental Appropriations Act for Defense, the Global War on

Terror, and Tsunami Relief, 2005, P.L. 109-13, §§ 201-207, 119 Stat. 231, 312-16 (2005).

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addition, REAL ID repealed certain overlapping and potentially conflicting provisions of the

IRTPA.

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In general, although REAL ID does not directly impose federal standards with respect to states’

issuance of drivers’ licenses and personal identification cards, states nevertheless appear to need

to adopt such standards and modify any conflicting laws or regulations to continue to have such

documents recognized by federal agencies for official purposes.

REAL ID contains a statutory definition of the phrase “official purpose.” For purposes of the act,

an “official purpose” is defined as including, but not limited to, “accessing Federal facilities,

boarding federally regulated commercial aircraft, entering nuclear power plants, and any other

purposes that the Secretary [of Homeland Security] shall determine.” In addition, REAL ID

contains a provision that specifically repealed § 7212 of the IRTPA, which had contained the

preexisting law with respect to national standards for drivers’ licenses and personal identification

cards.

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Section 202(c) of REAL ID establishes minimum issuance standards for federal recognition

requiring that before a state can issue a driver’s license or photo identification card, a state will

have to verify with the issuing agency, the issuance, validity, and completeness of (1) a photo

identification document or a non-photo document containing both the individual’s full legal name

and date of birth, (2) date of birth, (3) proof of a Social Security number (SSN) or verification of

the individual’s ineligibility for an SSN, and (4) name and address of the individual’s principal

residence. To the extent that information verification requirements previously existed, they were a

function of state law and varied from state to state. This REAL ID provision appears to preempt

any state verification standards and replace them with the new federal standards as established by

this statutory language.

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Section 202(c)(2)(B) of REAL ID appears to require states to verify an applicant’s legal status in

the United States before issuing a driver’s license or personal identification card. Previously, the

categories of persons eligible for drivers’ licenses were determined on a state-by-state basis. As

indicated above, the IRTPA specifically prevented the Secretary of Transportation from enacting

regulations that would interfere with this authority. This section of REAL ID appears to preempt

any state law requirements and seems to require the states to verify the legal status of the

applicant.

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Section 202(c)(2)(C) of REAL ID establishes a system of temporary licenses and identification

cards that can be issued by the states to applicants who can present evidence that they fall into

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one of six categories.16 Under REAL ID, a state may only issue a temporary driver’s license or

identification card with an expiration date equal to the period of time of the applicant’s authorized

stay in the United States. If there is an indefinite end to the period of authorized stay, the card’s

expiration date is one year. The temporary card must clearly indicate that it is temporary and state

its expiration date. Renewals of the temporary cards are to be done only upon presentation of

valid documentary evidence that the status had been extended by the Secretary of Homeland

Security. If such provisions existed prior to the enactment of REAL ID, they existed as a function

of state law and are preempted by the act.

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Pursuant to § 202(d) of REAL ID, states are required to adopt procedures and practices to (1)

employ technology to capture digital images of identity source documents, (2) retain paper copies

of source documents for a minimum of seven years or images of source documents presented for

a minimum of 10 years, (3) subject each applicant to a mandatory facial image capture, (4)

establish an effective procedure to confirm or verify a renewing applicant’s information, (5)

confirm with the Social Security Administration an SSN presented by a person using the full

Social Security account number,17 (6) refuse issuance of a driver’s license or identification card to

a person holding a driver’s license issued by another state without confirmation that the person is

terminating or has terminated the driver’s license, (7) ensure the physical security of locations

where cards are produced and the security of document materials and papers from which drivers’

licenses and identification cards are produced, (8) subject all persons authorized to manufacture

or produce drivers’ licenses and identification cards to appropriate security clearance

requirements, (9) establish fraudulent document recognition training programs for appropriate

employees engaged in the issuance of drivers’ licenses and identification cards, and (10) limit the

length of time a drivers’ license or personal identification card is valid to eight years.

In addition to these requirements, REAL ID contains language requiring that states, if they elect

to issue a drivers’ license or personal identification card that does not conform to the

requirements of this act, be required to use a unique color identifier or design to alert officials that

the document is not to be accepted for any official purpose. Moreover, the states are required to

clearly state on the face of the document that it is not to be accepted for federal identification or

for any official purpose. Further, the enacted version of REAL ID includes a provision requiring

the states to maintain a motor vehicle database that, at a minimum, contains all data fields printed

According to REAL ID, persons are only eligible for temporary drivers’ licenses or

identification cards if evidence is presented that they (1) have a valid, unexpired nonimmigrant visa or non-immigrant visa status for entry into the United States; (2) have a

pending or approved application for asylum in the United States; (3) have entered into the

United States in refugee status; (4) have a pending or approved application for temporary

protected status in the United States; (5) have approved deferred action status; or (6) have

a pending application for adjustment of status to that of an alien lawfully admitted for

permanent residence in the United States or conditional permanent resident status in the

United States.

In the event that an SSN is already registered to or associated with another person to

whom any state has issued a driver’s license or identification card, the state is required to

resolve the discrepancy and take appropriate action.

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on the drivers’ license or identification card and all motor vehicle driver histories, including

violations, suspensions, or “points.” Finally, the act requires the states to provide electronic

access to their databases to all other states. To the extent that any of these requirements previously

existed, they did so as a function of state law. Thus, it appears that the state laws are preempted in

favor of the new federal standards.

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Section 203 of REAL ID amends 18 U.S.C. § 1028(a)(8), which makes it a federal crime either to

actually, or with intent, transport or transfer identification authentication features18 that are used

on a document of the type intended or commonly presented for identification purposes. By

replacing the phrase “false identification features” with “false or actual authentication features,”

this provision appears to broaden the scope of the criminal provision, making it a crime to traffic

in identification features regardless of whether the feature is false. In addition, Section 203

requires that the Secretary of Homeland Security enter into the appropriate aviation-screening

database the personal information of anyone convicted of using a false drivers’ license at an

airport.

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Section 204 of REAL ID authorizes the Secretary of Homeland Security to make grants to the

states, for the purpose of assisting them in conforming to the new national standards. The section

also contains the necessary language authorizing the appropriation of federal funds for the grant

program.

In addition, § 205 provides the Secretary of Homeland Security with the statutory authority to

promulgate regulations, set standards, and issue grants. The Secretary is required by the statute to

consult with both the Secretary of Transportation as well as with the states when acting pursuant

to this authority. Moreover, the Secretary is authorized to extend the three-year deadline

contained in Section 202(a)(1) for any state on the condition that the state provide an adequate

justification for their non-compliance.

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The Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking

(NPRM) for REAL ID on March 3, 2007.19 The NPRM proposed requirements to meet the

minimum standards required under the act. The proposed requirements included, inter alia,

proposed requirements regarding the information and security features that must be incorporated

into each card, proposed application information that must be presented to establish the identity

and immigration status of an applicant before a card can be issued, and proposed physical security

standards for state facilities where drivers’ licenses and personal identification cards are

These include, but are not limited to, holograms, watermarks, symbols, codes, images,

or sequences. See 18 U.S.C. § 1028(d)(1) (2000).

See 72 Fed. Reg. 10820 (Mar. 3, 2007).

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produced. In response, DHS received over 21,000 comments to the NPRM during the 60-day

public comment period. The final regulations were promulgated by DHS nine months later on

January 29, 2008.20

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Both at the time that REAL ID was debated in Congress, and during the regulatory comment

period, questions about the constitutionality of the statute were raised. There have been four main

constitutional arguments made against REAL ID. First, because REAL ID cannot be premised on

Congress’s power to regulate interstate commerce, it is a violation of states’ rights as protected by

the Tenth Amendment. Second, the requirement that REAL IDs be used to board federally

regulated aircraft impermissibly encroaches on citizen’s right to travel. Third, specific

requirements such as the digital photograph potentially violate the Free Exercise Clause of the

First Amendment. Finally, REAL ID infringes upon a citizen’s right under the First Amendment

to freely assemble, associate, and petition the government.

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Although Congress’s power to regulate matters affecting interstate commerce is broad, it is not

unlimited and, in recent years, has been constrained by the Court’s interpretation of the Tenth

Amendment.21 Such an interpretation appears to be derived from the Tenth Amendment’s

protection of state sovereignty, which the Supreme Court has invoked as a limit on Congress’s

Article I domestic powers. Starting with its decision in Garcia v. San Antonio Metropolitan

Transit Authority22—which held that most disputes over the effects on state sovereignty of federal

commerce power legislation are to be considered political questions, and that the states should

look for relief from federal regulation through the political process23—the Court appears to be

willing to use the Tenth Amendment to protect the sovereign interests of the states. Immediately

after Garcia, however, it appeared that the only way to show a Tenth Amendment violation was to

demonstrate that there had been a breakdown in the national political process that thwarted the

ordinary procedural safeguards inherent in the federal system.24 Several years later in New York v.

United States,25 which involved the “take title” provisions of the Low-Level Radioactive Waste

73 Fed. Reg. 5272 (Jan. 29, 2008).

The Tenth Amendment states that “The powers not delegated to the United States by

the Constitution, nor prohibited by it to the states, are reserved to the states respectively,

or to the people.” U.S. CONST. Amend. X.

469 U.S. 528 (1985).

See id. at 552 (stating that limitations on congressional power to limit the states are

“more properly protected by procedural safeguards than by judicially created limitations

on federal power.”); see also South Carolina v. Baker, 485 U.S. 505 (1988).

See Baker, 485 U.S. at 512-13 (holding that “[w]here ... the national political process

did not operate in a defective manner, the Tenth Amendment is not implicated”).

505 U.S. 144 (1992).

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Policy Amendments Act of 1985,26 the Court held that the federal statute at issue effectively

commandeered the state lawmaking process because regardless of which option the state chose,

“the Act ... compelled them to enact and enforce a federal regulatory program.”27 In reaching this

conclusion, the Court held that essential to the concept of state sovereignty is control over the

states’ legislative process, which was diminished by the imposition of a federal mandate.28 In

addition, the Court held that the “take title” provision threatened state sovereignty because it had

the potential to cause confusion among citizens as to which government officials, state or federal,

were responsible for particular actions.29 Finally, the Court made clear that the “States are not

mere political subdivisions of the United States,” and concluded that commandeering their

legislative process treats them as such.30

Building on its holding in New York, the Court in Printz v. United States31 extended the anticommandeering principle to include not only a state’s legislative process, but also a state’s

executive functions, including its enforcement of the law. At issue in Printz were specific

requirements of the Brady Handgun Violence Prevention Act, which required state and local

officials to, inter alia, execute federal background checks on potential handgun purchasers.32 The

Court, in holding the Brady provisions unconstitutional, also focused on the importance of state

sovereignty stating that “[i]t is an essential attribute of the States’ retained sovereignty that they

remain independent and autonomous within their proper sphere of authority.”33 Additionally, the

Court held that, like the statute in New York, the Brady provisions were unconstitutional because

they potentially confused citizens with respect to which government officials, state or federal,

were to be held accountable in the event of any problems with the requirements.34

In 2000, however, the Supreme Court decided Reno v. Condon,35 and upheld, as consistent with

the federalism principles established in New York and Printz, provisions of the Driver’s Privacy

Protection Act (DPPA).36 The DPPA regulated the ability of the states to disclose and resell

information collected from state motor vehicle departments.37 The Court distinguished the DPPA

Id. at 505 U.S. at 175. According to the Court, the “take title” provisions “offer[ed]

state governments a choice of either accepting ownership of waste or regulating

according to the instructions of Congress.” Id.

Id. at 176

Id. at 188.

Id. at 168-69.

Id. at 188.

521 U.S. 898 (1997).

Brady Handgun Violence Prevention Act, P.L. 103-159, 107 Stat. 1536 (1993).

Printz, 521 U.S. at 928.

See id. at 929-30 (stating that “[b]y forcing state government to absorb the financial

burden of implementing a federal regulatory program, Members of Congress can take

credit for solving problems without having to ask their constituents to pay higher federal

taxes. And even when the States are not forced to absorb the costs of implementing a

federal program, they are still put in the position of taking the blame for its

burdensomeness and for its defects”). Id.

528 U.S. 141 (2000).

Id. at 143 (citing the Driver’s Privacy Protection Act, 18 U.S.C. §§ 2721-2725 (1994)).

Id.

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from the statutes in both New York and Printz, because, according to the Court, the “DPPA does

not require the states in their sovereign capacity to regulate its own citizens.... It does not require

the [states] to enact any laws or regulations and it does not require state officials to assist in the

enforcement of federal statutes regulating private individuals.”38 In addition to its holding with

respect to the constitutionality of the DPPA, the Court also referred to an argument advanced by

the challenging state that Congress may only regulate the states directly when it does so via

“generally applicable laws or laws that apply to individuals as well as States.”39 The Court,

holding that the DPPA was “generally applicable,” found that it was not necessary to address this

question, and thus, has left it reserved for future consideration.40

Whether limiting the standards to federal acceptance—as opposed to direct federal requirements

on the states—obviates federalism concerns under Supreme Court jurisprudence remains to be

seen as no cases have yet been filed challenging the constitutionality of the law. It appears

possible to argue, however, that because the issuance of drivers’ licenses remains a function of

state law, the minimum issuance and verification requirements established by the act, even if

limited to federal agency acceptance, constitute an effective commandeering by Congress of the

state process, or a conscription of the state and local officials who issue the licenses.

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Although not expressly defined in the text of the Constitution, the Supreme Court has stated that

the right to travel is a “privilege and immunity of national citizenship under the Constitution,”41

as well as a “part of the ‘liberty’ of which the citizens cannot be deprived without due process of

law.”42 The Court has declared that the constitutional right to travel consists of three different

components: first, it protects the right of a citizen of one state to enter and to leave another state;

second, it protects the right to be treated as a welcome visitor rather than an unfriendly alien when

temporarily present in the second state; and third, for those travelers who elect to become

permanent residents, it protects the right to be treated like other citizens of that state.43

Precedent regarding the right to travel has developed along two primary strands. The first

addresses burdens imposed by state governments and involves the Fourteenth Amendment,

whereas the second strand involves federally imposed burdens on international travel and appears

to involve the Fifth Amendment’s due process clause. Under the Fourteenth Amendment cases,

the right to travel from one state to another has been considered a fundamental right under the

Constitution.44 Consistent with its status as a fundamental right is the requirement that the

Id. at 151.

Id.

See id.

United States v. Guest, 383 U.S. 745, 764 (1966) (Harlan, J. concurring) (citing

Corfield v. Coryell, 4 Wash. C.C. 371 (1825)); see also U.S. CONST. Art. 4, § 2, cl. 1; U.S.

CONST. Amend. 14, § 1.

Kent v. Dulles, 357 U.S. 116, 125 (1958).

See Sanez v. Roe, 526 U.S. 489, 500-03 (1999).

United States v. Guest, 383 U.S. 745, 758 (1966) (stating that “[t]he constitutional right

to travel from one State to another, and necessarily to use the highways and other

instrumentalities of interstate commerce in doing so, occupies a position fundamental to

(continued...)

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government’s action satisfy the constitutional standard of review often referred to as strict

scrutiny, or heightened scrutiny.45 Under strict scrutiny the government must provide a

compelling state interest for the burden and show that the means utilized are narrowly tailored to

the achievement of the goal or, phrased another way, the least restrictive means available.46 In

addition to the strict scrutiny cases, there have been cases where the state has placed burdens on

the act of travel itself. In these cases, the justification level appears to be much lower.47 The Court

has held that burdens on travel are justifiable as long as they are uniformly applied and support

the safety and integrity of the travel facilities.48 Thus, for example, highway tolls and airport fees

have been upheld, but a general tax imposed on all individuals leaving a state may impermissibly

restrict travel.49

Conversely, in right to travel cases involving federally imposed burdens on interstate travel,

which implicate the Fifth Amendment, courts appear to reject the Fourteenth Amendment

fundamental rights analysis and apply a less stringent rational basis test. The rational basis test

simply requires that laws be rationally related to a legitimate government interest.50 Here again,

the government appears not to be required to show a compelling interest to justify a uniformly

applied, non-discriminatory travel-related restriction.51

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the concept of our Federal Union. It is a right that has been firmly established and

repeatedly recognized”).

Att’y General of New York v. Sato-Lopez, 476 U.S. 898, 906 (1986); see also Shapiro v.

Thompson, 394 U.S. 618 (1969).

Id. at 909-10 (stating that “‘if there are other, reasonable ways to achieve [a compelling

state purpose] with a lesser burden on constitutionally protected activity, a State may not

choose the way of greater interference. If it acts at all, it must choose ‘less drastic

means.’”(quoting Dunn v. Blumstein, 405 U.S. 330, 343 (1972); Shelton v. Tucker, 364

U.S. 479, 488 (1960)) (citing Memorial Hospital v. Maricopa Hospital, 415 U.S. 250,

263 (1974)).

See United States v. Davis, 482 F.2d 893, 912-13 (9th Cir. 1973) (upholding the preboarding screening of passengers and carry-on articles by stating that the “screening of

passengers and of the articles that will be accessible to them in flight does not exceed

constitutional limitations provided that the screening process is no more extensive nor

intensive than necessary, ... to detect the presence of weapons or explosives, that it is

confined in good faith to that purpose, and that potential passengers may avoid the search

by electing not to fly”).

See Evansville-Wanderburgh Airport Auth. Dist. v. Delta Airlines, 405 U.S. 707, 711715 (1972).

Id. at 714-16

See City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 440 (1985); see

also Schweiker v. Wilson, 450 U.S. 221, 230 (1981); United States Railroad Retirement

Board v. Fritz, 449 U.S. 166, 174-175 (1980); Vance v. Bradley, 440 U.S. 93 (1979); New

Orleans v. Dukes, 427 U.S. 297, 303 (1976).

See e.g., Regan v. Wald, 468 U.S. 222 (1983); see also Zemel v. Rusk, 381 U.S. 1

(1965); Aptheker v. Secretary of State, 378 U.S. 500, 514 (1964).

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Given that the airlines are seemingly authorized to refuse service to anyone who fails to present

proper identification, it appears that a strong argument can be made that REAL ID imposes an

additional burden on citizens who wish to travel by federally regulated aircraft. Thus, the inquiry

should focus on the standard of review that should be applied. That said, it appears difficult to

argue that ensuring the security and validity of identification documents will fail to increase

passenger safety and transportation facility security, which are likely compelling governmental

interests. Thus, it seems that, regardless of which standard of review is applied, the government

may be in a strong position to argue that not only are the identification requirements justifiable,

but also that their burden on the right to travel is minimal and, in light of the present conditions,

entirely reasonable. Moreover, it is important to note that not having a REAL ID will not prevent

individuals from boarding aircraft. Rather, the lack of a REAL ID, whether by state noncompliance or personal choice, will simply mean either that alternative identification will have to

be produced (such as a military ID, passport, or other documents accepted by the Transportation

Security Administration (TSA)) or additional security screening will be required before the

individual is allowed to board.

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According to some opponents, the fact that REAL ID requires, without exemption, that a digital

photograph appear on each document violates the religious beliefs of certain sects of Amish

Christians, Muslim women, as well as other religions.52 Thus, it has been argued that this

requirement unconstitutionally impacts the free exercise of their religion.

The Supreme Court has consistently affirmed that the Free Exercise Clause protects religious

beliefs; however, protection for religiously motivated conduct has waxed and waned over the

years. In recent years, the Court has gradually abandoned any distinction between belief and

conduct, developing instead a balancing test to determine when a uniform, nondiscriminatory

requirement by government mandating action or non-action by citizens, such as the photo

requirement contained in REAL ID, must allow exceptions for citizens whose religious scruples

forbid compliance.

In Sherbert v. Verner,53 the Court required a religious exemption from a secular, regulatory piece

of economic legislation. Ms. Sherbert had been disqualified from receiving unemployment

compensation because, as a Seventh Day Adventist, she would not accept Saturday work.

According to state officials, this meant she was not complying with the statutory requirement to

stand ready to accept suitable employment. The Court held that her denial of benefits could be

justified under the Free Exercise Clause if “her disqualification as a beneficiary represents no

infringement by the State of her constitutional rights of free exercise, or [if] any incidental burden

on the free exercise of appellant’s religions may be justified by a ‘compelling state interest in the

regulation of a subject within the State’s constitutional power to regulate.... ’”54

See, e.g., American Civil Liberties Union, “Real ID Scorecard,” available at,

http://www.aclu.org/images/general/asset_upload_file162_33700.pdf.

374 U.S. 398 (1963).

Id. at 403 (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)).

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After Sherbert, the Court applied the “compelling state interest” test in several cases, finding, for

example, in Wisconsin v. Yoder,55 that a state compulsory attendance law, as applied to require

Amish children to attend 9th and 10th grades of public schools in contravention of Amish religious

beliefs, violated the Free Exercise Clause. Conversely, however, the Court held that the

government had a “compelling interest” with respect to compulsory participation in the Social

Security system,56 as well as with regard to the denial of tax exemptions to church-run colleges

whose racially discriminatory admissions policies derived from religious beliefs.57

Finally, in 1990 the Court decided Employment Division v. Smith,58 which involved a challenge to

a state statute that denied unemployment benefits to drug users including Native Americans

engaged in the sacramental use of peyote.59 The Court in Smith indicated that the “compelling

interest test” does not apply to require exemptions from generally applicable criminal laws.

Criminal laws, held the Court, are “generally applicable” when they apply across the board

regardless of the religious motivation of the prohibited conduct, and are “not specifically directed

at ... religious practices.”60 Thus, except in the relatively uncommon circumstance when a statute

calls for individualized consideration, then, the Free Exercise Clause affords no basis for

exemption from a “neutral, generally applicable law.” As the Court concluded in Smith,

accommodation for religious practices incompatible with general requirements must ordinarily be

found in “the political process.”61

Subsequently, in 1993, Congress sought to supersede Smith and substitute a statutory rule of

decision for free exercise cases. The Religious Freedom Restoration Act (RFRA)62 provides that

laws of general applicability—federal, state, and local—may substantially burden the free

exercise of religion only if they further a compelling governmental interest and constitute the

least restrictive means of doing so. As Congress declared in the act itself, the purpose was “to

restore the compelling interest test as set forth in Sherbert v. Verner ... and to guarantee its

application in all cases where free exercise of religion is substantially burdened.”63

In the most recent Supreme Court case to address these issues, Gonzales v. O Centro Espirita

Beneficente Uniao Do Vegetal,64 the Court affirmed a preliminary injunction preventing the

government from using the Controlled Substances Act from prosecuting practitioners of a

Amazon Rainforest religious sect that receives communion by drinking a tea that contains

hoasca, a hallucinogen that is prohibited under the federal Controlled Substances Act (CSA).65

Although the case arose on procedural grounds, the Court nevertheless held that the government

has a burden of demonstrating a “compelling government interest,” such that no exception can be

406 U.S. 205 (1972).

See United States v. Lee, 455 U.S. 252 (1982).

See Bob Jones University v. United States, 461 U.S. 574 (1983).

494 U.S. 872 (1990).

Id. at 890.

Id. at 878.

Id. at 890.

Religious Freedom Restoration Act, P.L. 103-141, 107 Stat. 1488 (1993) (codified as

amended at 42 U.S.C. §§ 2000bb to 2000bb-4 (2000)).

Id. at § 2(b)(1).

546 U.S. 418 (2006).

Id. at 423.

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made to accommodate the religious use of the drug.66 According to the Court, the absence of this

required showing by the government, even at the preliminary injunction stage, necessitated a

finding for the plaintiffs and a granting of the injunction.67

Thus, the question for a reviewing court, should a challenge to REAL ID be brought on Free

Exercise grounds, will be whether the government has a “compelling interest” in uniform

application of the law, such that no exceptions, even on reasonable religious grounds, can be

afforded. Given REAL ID’s strong basis as both an anti-terrorism and fraud prevention statute, it

appears that the government would have a strong argument that a compelling interest does exist

for not granting any exceptions to the act’s requirements. Conversely, it also appears reasonable

to argue that although the government’s interest is strong, reasonable accommodations on

religious grounds are still possible and are required by the First Amendment.

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Finally, some have argued that REAL ID is a violation of the First Amendment because the

measure infringes upon a citizen’s right to freely assemble, associate, and petition the

government.68

The First Amendment states that “Congress shall make no law ... abridging the ... right of the

people peaceably to assemble, and to petition the government for a redress of grievances.”69 The

argument appears to be that linking a state’s issuance of enhanced identification documents to its

citizen’s ability to board a federally regulated aircraft prevents the full exercise of an individual’s

liberties, such as those provided by the First Amendment, that depend on a citizen’s ability to

freely move throughout the country.70 By imposing burdensome requirements on interstate travel

the government has arguably prevented persons who wish to refrain from identifying themselves

and/or submitting to enhanced security screening from exercising their constitutional rights.

Although it appears that neither the Supreme Court nor any lower federal court has been

presented with an analogous situation, the Court has indicated that anonymity is a concept

protected by the First Amendment. For example, in Thomas v. Collins, Sheriff, the Court

invalidated a Texas statute requiring labor organizers to register and obtain an organizer’s card

before making speeches to assembled workers as incompatible with the guarantees of the First

Amendment.71 As recently as 2004, the Court has upheld the general notion that citizens have a

right to anonymity especially in situations where a citizen is not suspected of a crime.72 In light of

these precedents, it may be possible to challenge the identification requirement on the grounds

See id. at 439.

Id.

See, e.g., American Civil Liberties Union, “Real ID Scorecard,” available at,

http://www.aclu.org/images/general/asset_upload_file162_33700.pdf.

U.S. CONST. Amend. I.

Aptheker v. Sec. of State, 378 U.S. 500, 520 (1964) (stating that “[f]reedom of

movement is akin to the right of assembly and to the right of association”).

Thomas v. Collins, Sheriff, 323 U.S. 516, 539 (1944) (stating that “[l]awful public

assemblies, involving no element of grave and immediate danger ... are not instruments

of harm which require previous identification of speakers”).

See Hiibel v. Sixth Judicial Dist. Court, 124 S.Ct. 2451 (2004).

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that it violates the First Amendment right of citizens to be anonymous; however, claims made

regarding the rights of association and petition of the government do not appear to have received

the same support.

Although it may be argued that a general right of anonymity exists, it is difficult to connect the

implication of this right to the purpose of REAL ID. A strong argument exists that the regulations

are in no way intended to impact a person’s First Amendment rights; rather, the regulations at

issue are aimed at preventing and deterring the use of fraudulent identification documents for

federal purposes. Thus, these regulations can arguably be said to have, at most, an incidental or

indirect effect on rights protected by the First Amendment. In cases where the regulation at issue

was not specifically directed at First Amendment rights, the Court has held such regulations

subject to First Amendment scrutiny only when “it was conduct with a significant expressive

element that drew the legal remedy in the first place, ... or where a statute based on a nonexpressive activity has the inevitable effect of signaling out those engaged in expressive

activity.”73 Given the indirect effect that these regulations may have on First Amendment rights, it

would appear unlikely that challengers could establish the significant or substantial impact on

their right to associate or petition the government that would be required to trigger First

Amendment scrutiny.

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According to some advocacy groups, state and federal elected officials—including numerous

commentators to the proposed regulations74—and others, REAL ID imposes an unconstitutional

“unfunded mandate” on the states.75 Generally speaking, the term “unfunded mandate” refers to

requirements that one unit of government imposes on another without providing funds to pay for

costs of compliance. In this instance, the argument has often been advanced that the federal

government has imposed the requirements of REAL ID on the states without providing adequate

funding to cover the implementation costs.

Arguments related to “unfunded mandates” typically take two forms. First, is the argument that

unfunded mandates are unconstitutional as violations of the Tenth Amendment. As indicated

above, jurisprudence with respect to the Tenth Amendment is limited, and the federal courts have

not to date specifically addressed the “unfunded mandate” issue.

Arcara v. Cloud Books, 478 U.S. 697, 706-07 (1986); see also Fighting Finest Inc. v.

Bratton, 95 F.3d 224, 228 (2d Cir. 1996) (stating that “to be cognizable, the interference

with associational rights must be ‘direct and substantial’ or ‘significant’”).

See 73 Fed. Reg. 5272, 5283 (Jan. 29, 2008) (indicating that states, AAMVA, and

“numerous commenters” wrote that REAL ID was an unfunded mandate).

See, e.g., Robert W. Dalton, Legislators seeking Real ID Solution, (March 6, 2008),

Spartanburg Herald Journal, http://www.goupstate.com/article/20080306/NEWS/

803060354/1051/NEWS01 (noting that South Carolina Governor Mark Sanford has

called REAL ID and “unfunded mandate”); Gregg Carlstrom, Lawmakers: DHS Budget

Shortchanges States, federaltimes. com, (March 6, 2008), http://federaltimes.com/

index.php?S=3407884 (quoting Tennessee Senator Lamar Alexander as indicating that

REAL ID is an “unfunded mandate”).

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Second, “unfunded mandate” arguments refer to the statutory requirements of the Unfunded

Mandates Reform Act of 1995 (UMRA).76 UMRA contains both legislative and regulatory reform

provisions designed to limit or prohibit the number of unfunded mandates adopted by Congress

and the regulatory agencies. The legislative reforms establish requirements for committees and

the Congressional Budget Office (CBO) to study and report on the magnitude and impact of

mandates in proposed legislation. In addition, the reforms include point-of-order procedures by

which the requirements can be enforced, and by which the consideration of measures containing

unfunded intergovernmental mandates can be blocked. With respect to regulations, UMRA

requires federal agencies to prepare written statements identifying the costs and benefits of any

federal mandate in excess of $100 million annually (adjusted annually for inflation)77 imposed

through the rulemaking process. The written assessments must identify the law authorizing the

rule, anticipated costs and benefits, the share of costs to be borne by the federal government, and

the disproportionate costs on individual regions or components of the private sector. Additionally,

the law requires that the assessments include estimates of the effect on the national economy,

descriptions of consultations with non-federal government officials, and a summary of the

evaluation of comments and concerns obtained throughout the promulgation process.78 Moreover,

UMRA requires that federal agencies consider “a reasonable number” of policy options and select

the most cost-effective or least burdensome alternative.79 Judicial review under UMRA is limited

to ensuring that the agency complies with the procedural requirements of the statute. Courts may

compel the agency to comply with the statute, but failure to do so cannot be used as a basis for

invalidating a rule.80

Although it appears that REAL ID requires significant expenditures by the states to comply with

its requirements, UMRA arguably exempts the REAL ID regulations from the statute’s

requirements. Specifically, Section 4 of UMRA excludes from the scope of the law final

regulations that are “necessary for the national security.”81 In addition, UMRA excludes

regulations that “incorporate requirements specifically set forth in law.”82 DHS relies on both of

these provisions in its explanation as to why REAL ID is not an unfunded mandate.83

Nevertheless, in its explanatory statement accompanying the final rule, DHS indicated that it

complied with the provisions of UMRA, noting that it analyzed the cost to the states, considered

alternatives, and solicited input from state and local governments.84

Unfunded Mandates Reform Act of 1995, P.L. 104-4, 109 Stat. 48 (1995) (codified at 2

U.S.C. § 1501 et seq.)[hereinafter UMRA].

Id. at § 202 (codified at 2 U.S.C. § 1532(a)).

Id. at §§ 201-208 (codified at 2 U.S.C. §§ 1531-38).

Id. at § 205 (codified at 2 U.S.C. § 1535).

Id. at § 401 (codified at 2 U.S.C. § 1571); see also American Trucking Assoc. Inc., v.

United States Environmental Protection Agency, 175 F.3d 1027 (D.C. Cir. 1999) (noting

that failure to comply with the provisions of UMRA could not be a basis for invalidating

the agency’s rule); Associated Builders & Contractors Inc. v. Herman, 976 F.Supp. 1

(D.D.C. 1997) (same).

Id. at § 4 (codified at 2 U.S.C. § 1503).

Id. at § 201 (codified at 2 U.S.C. § 1531).

See 73 Fed. Reg. 5272, 5321 (Jan. 29, 2008).

Id. at 5329.

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In accordance with the effective date of the statute, on May 11, 2008, all drivers’ licenses and

personal identification cards from non-compliant states will no longer be accepted by federal

officials for “official purposes,” which includes access to federal facilities, boarding federally

regulated commercial aircraft, entry into nuclear power plants, and such other purposes as

established by the Secretary of Homeland Security.85 This general rule will take effect unless a

state has requested an extension from DHS.

Extensions of the May 11, 2008, deadline are authorized by § 205(b) of the REAL ID statute,

specifically “to meet the requirements of [the act].” According to the final rule, however, the

states requesting such an extension must have notified DHS by March 31, 2008.86 If granted, all

extensions will be valid until December 31, 2009. As of the writing of this report, 49 states and

the District of Columbia have been granted the initial extensions. The only state that has not yet

received the extension is Maine.87

An issue that has arisen regarding the extensions is what constitutes “to meet the requirements of

[the act].” Several states have made clear in their letters requesting the extension that either due to

existing state law, or other concerns regarding REAL ID in general, that their request for an

extension is not to be viewed as an indication that they intend to fully implement the requirements

of REAL ID.88 Although it would appear that such an indication would arguably make the state

Id. at 5332; see also 6 C.F.R. § 37.3 (2008). In a recent press briefing, the Secretary of

Homeland Security, Michael Chertoff, stated that REAL ID goes into effect on May 11,

2008, and that it will be enforced. See Remarks by Homeland Security Michael Chertoff

at Pen-and-Pad Briefing on the Department’s Fifth Anniversary, March 6, 2008, available

at, http://www.dhs.gov/xnews/releases/pr_1204843734531.shtm (stating that “I’m not

bluffing about May 11, ... the law makes it clear ... if you don’t get a waiver then you’re

going to have—a driver’s license will not be acceptable for federal purposes as an ID”).

See 73 Fed. Reg. at 5339; see also 6 C.F.R. §37.63 (2008).

See DHS REAL ID website, available at, http://www.dhs.gov/xprevprot/programs/

gc_1200062053842.shtm [hereinafter DHS website]. According to reports, at the time

that the deadline expired, DHS and Maine were still negotiating language that would

permit the granting of an extension. Maine has been granted two extra days to respond to

DHS’s concerns. See AP, S.C. Gets Extension On New ID Law, WASH. POST. A14,

available at, http://www.washingtonpost.com/wp-dyn/content/article/2008/03/31/

AR2008033102806.html (Apr. 1, 2008) (stating that Maine has been given until 5 p.m. on

April 2 to “work out its differences with the government”).

See, e.g., Letter from John J. Barthelmes, Commissioner, State of New Hampshire

Department of Safety, to Stewart A. Baker, Assistant Secretary for Policy, U.S.

Department of Homeland Security (Mar. 26, 2008), available at, http://blog.wired.com/

27bstroke6/files/real_id_extension_letter_2_4.pdf (stating that “New Hampshire is ...

currently prohibited by law from implementing the REAL ID Act”); see also Letter from

Mike McGrath, Attorney General, State of Montana, to The Honorable Michael Chertoff,

Secretary of Homeland Security, U.S. Department of Homeland Security, (Mar. 21,

2008), available at, http://blog.wired.com/27bstroke6/files/mcgrath_fax.pdf; Letter from

(continued...)

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ineligible for the extension, DHS has, to date, granted each of these extensions, despite such

language in the state’s request letter.89

In addition to the initial extension, states may request a second extension if, by October 11, 2009,

states file with DHS a “Material Compliance Checklist” that demonstrates that the state is in

“material compliance” with all of the benchmarks established by the final rule.90 This extension,

if granted, will be valid until May 10, 2011.91 The final regulation does not indicate precisely

what DHS considers to be “material compliance”; therefore, it appears that the decision to grant a

second extension is solely at the discretion of the Secretary or his designee.

According to the final rule, states must meet all of the REAL ID requirements by December 1,

2014, for drivers’ licenses and personal identification cards issued to persons born after December

1, 1964, and by December 1, 2017, for persons born before December 1, 1964.

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Since its adoption in 2005, REAL ID has been a highly contested issue among state legislatures

and governors. Prior to the publication of the NPRM in 2007, however, there was little activity at

the state lawmaking level, primarily because officials were uncertain as to precisely what the

implementation requirements were going to necessitate, either in terms of cost or potential

(...continued)

George Valverde, Director, State of California, Department of Motor Vehicles, to The

Honorable Michael Chertoff, Secretary of Homeland Security, U.S. Department of

Homeland Security, (Mar. 18, 2008), available at, http://blog.wired.com/business/files/

californiadmvrealid.pdf (stating that “California’s request for an extension is not a

commitment to implement REAL ID”).

See Letter from Stewart A. Baker, Assistant Secretary for Policy, U.S. Department of

Homeland Security, to John J. Barthelmes, Commissioner, State of New Hampshire

Department of Safety, (Mar. 27, 2008), available at, http://blog.wired.com/27bstroke6/

files/real_id_extension_letter_2_4.pdf (stating that “[u]nder the statute, the Department

can only grant an extension of the compliance deadline. Therefore, I can only provide the

relief you are seeking by treating your letter as a request for an extension”); see also

Letter from Stewart A. Baker, Assistant Secretary for Policy, U.S. Department of

Homeland Security, to Mike McGrath, Attorney General, State of Montana, (Mar. 21,

2008), available at, http://blog.wired.com/27bstroke6/files/response_to_mt_32108.pdf

(same).

73 Fed. Reg. at 5274 & 5339. The benchmarks are delineated in the “Material

Compliance Checklist,” which is available from the DHS website. See DHS website,

supra note 86, available at, http://www.dhs.gov/xlibrary/assets/

real_id_final_rule_part2_2008-01-11.pdf.

Id.

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changes to state law.92 Since the publication of the NPRM in 2007, there has been a dramatic

increase in state responses to REAL ID and its requirements.

To date, it appears that only six states—Indiana, Nevada, Ohio, Tennessee, Virginia, and

Wisconsin—have affirmatively enacted legislation that in some form adopts, or requires to be

adopted, the federal minimum standards that are articulated in REAL ID.93 These statutes,

however, vary in type, and arguably in effectiveness. For example, in both Tennessee and

Virginia, the language appears in annual appropriations acts, which arguably means that

compliance may have to be reaffirmed during the state’s next appropriations cycle, or it can be

eliminated.94 Conversely, in Nevada, the legislature adopted into law new provisions of the state’s

motor vehicle code that appear to be intended to bring the state into full compliance with REAL

ID.95 It also appears that an additional 12 states have statutory language pending that would

require the appropriate state departments to come into compliance with the requirements of

REAL ID.96

Conversely, there are nine states—Georgia, Idaho, Maine,97 Montana, Nebraska, New Hampshire,

Oklahoma, South Carolina, and Washington—that have adopted state statutes that appear to

indicate a refusal to comply with the requirements of REAL ID.98 These statutes vary in their

terms and effectiveness as well. Montana, for example, appears to have adopted the strongest

non-compliance law, which directs the Montana Department of Justice and the motor vehicle

administration not to participate in the federal REAL ID Act and to report to the governor any

attempts by DHS to secure implementation of REAL ID.99 In other examples, the Idaho

legislature appropriated $0 for implementation in 2008,100 whereas the Georgia legislature

In September 2006, the National Conference of State Legislatures (NCSL), National

Governors Association (NGA), and the American Association of Motor Vehicle

Administrators (AAMVA) published a National Impact Analysis, which contained a 50state survey of the likely impacts that REAL ID will have on state laws and regulations.

See NGA, NCSL, AAMVA, The REAL ID Act: Final Impact Analysis, available at,

http://www.ncsl.org/print/statefed/Real_ID_Impact_Report_FINAL_Sept19.pdf.

National Conference of State Legislatures (NCSL), “REAL ID State Legislation

Database,” available at, http://www.ncsl.org/standcomm/sctran/RealIDdb.cfm]

[hereinafter NCSL database].

See 2007 TENN. PUB. ACTS, ch. 603 § 67, item 10 (2007); see also 2007 VA. ACTS, ch.

847 § 1-432 (2007).

NV. LAWS 2007, c. 486, § 49 (June 13, 2007).

These states include California, Kansas, Maryland, Michigan, Missouri, North

Carolina, Nebraska, New York, Oregon, Texas, Virginia, and Vermont. See NCSL

Database, supra note 93.

It should be noted that Maine’s statute specifically prevents the state’s participation in a

“national identification card” program; therefore, it is unclear whether it will be

interpreted as preventing compliance with REAL ID. It is included, however, because

many believe that REAL ID is a de facto national identification card. See infra notes 145147 and accompanying text.

See NCSL Database, supra note 93.

See MONT. CODE ANN. § 61-5-128 (2007).

100

See 2007 ID. SESS. LAWS. ch. 236 § 19 (2007).

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authorized the governor to delay implementation unless certain conditions are met.101 In addition

to the statutes directly prohibiting compliance, the legislative chambers in 15 states have adopted

non-binding resolutions or memorials that urge Congress to either amend or repeal REAL ID,

and/or that indicate the state’s intent to not comply.102 All told, 24 states have passed legislation

that either prohibits state compliance with the act or urges Congress to amend or repeal REAL ID.

In addition to those states that have enacted either statutory commands or non-binding

resolutions, there are a number of states that have such matters pending before their state

lawmakers. Currently, it appears that 11 states have bills that would prohibit compliance pending

before their legislatures,103 whereas another 20 states and the District of Columbia have nonbinding resolutions or memorials awaiting action.104

The ramifications of having several states that do not opt to comply with the terms of REAL ID

are far from clear. As previously discussed, the act itself is voluntary, binding only on federal

agencies, not on the states. Thus, the statute contains no penalty for non-compliance. To the

extent that there is a penalty for non-compliance by a state, it appears to be borne by the citizens

of the non-compliant state. For example, after May, 11, 2008, the citizens of a state such as

Montana—which has passed a law prohibiting compliance and has refused to file for an

extension—will not be able to use their state-issued drivers’ licenses or personal identification

cards for official purposes. Therefore, after May 11, Montana citizens will not be able to show

their Montana licenses to board a federally regulated aircraft or enter a federal building. Although

this does not mean that citizens of the non-compliant states cannot engage in interstate travel via

airplane—as many other forms of identification are acceptable by the Transportation Security

Administration (TSA) (i.e., passport, military ID, other forms of state or federally issued

identification)—or enter a federal court house or other federal building, it arguably does impose

an additional burden on the citizen because the state has chosen not to comply.

In addition, non-compliant states would apparently create holes in the scheme of state-to-state

data sharing that is an integral part of REAL ID. Presumably, non-compliant states will not

participate in the database creation or information-sharing system envisioned by the REAL ID

regulations. Thus, it would appear that potential problems may arise if, for example, an applicant

in a compliant state presents a document (i.e., birth certificate or other required paperwork) that

requires verification from a non-compliant state. At this early stage of implementation, however,

it is unclear precisely what effect this may have.

Moreover, the existence of non-compliant states presents the potential for conflicts among the

states, in addition to those between the non-compliant states and the federal government. For

101

See GA. CODE ANN., § 40-5-4.1 (2007)

These states include Arkansas, Arizona, Colorado, Hawaii, Idaho, Illinois, Maine,

Michigan, Missouri, North Dakota, Nevada, Pennsylvania, South Carolina, Tennessee,

and Utah. See NCSL Database, supra note 93.

103

These include Alaska, Arizona, Kansas, Minnesota, Missouri, Oregon, Pennsylvania,

Rhode Island, Utah, Virginia, and West Virginia. See NCSL Database, supra note 93.

104

These include Alabama, Arizona, California, Kentucky, Louisiana, Massachusetts,

Maryland, Michigan, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, Rhode

Island, Tennessee, Texas, Vermont, Washington, West Virginia, and Wyoming. See NCSL

Database, supra note 93.

102

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example, will a non-REAL ID-compliant driver’s license or personal identification card issued by

Montana continue to be a valid form if identification in Indiana, a state that has a specific

compliance law in place? The converse question also exists; namely, will Montana accept forms

of identification that comply with REAL ID as valid within its own jurisdiction? Currently,

neither REAL ID itself, nor the existing state laws appear to expressly address these questions;

however, they appear likely to arise as implementation advances.

Finally, it has been noted that several of the states that have adopted statutes prohibiting

compliance with REAL ID have also filed requests for extensions from DHS.105 According to

DHS, Georgia, Nebraska, Oklahoma, and Washington have all requested the extensions.106

Although it appears possible to distinguish between a request for an extension and noncompliance, as indicated above, DHS’s response to several states suggests that it is not strictly

interpreting the statutory language that requires that extensions be granted only to those states

evidencing an intent to comply.107

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The final regulations promulgated by DHS on January 29, 2008,108 contained over 280 pages and

responded to over 21,000 comments. This section contains a summary description and analysis of

several of the major elements of the REAL ID regulations.

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Section 37.17 of the new regulations require that REAL ID-compliant drivers’ licenses and

personal identification cards contain the name that appears on the source documents presented by

the applicant to establish identity. In other words, the name that must appear on a REAL IDcompliant card must be the same as the name that is on the identity document (passport, birth

certificate, Social Security card, etc.) presented at the time an application for the card is

submitted.109 The regulations do provide for an exception for persons whose names appear

differently on identity documents due to “marriage, adoption, court order, or other mechanism

permitted by State law or regulation.”110

Commentators and critics of this approach have regularly pointed out that given the lack of a

uniform convention with respect to this listing of names on federal documents this requirement is

potentially burdensome to state officials who may be presented with numerous documents each

105

See, e.g., Declan McCullagh, “States say no (and yes) to Real ID before May

deadline,” CNETNews.com, Mar. 4, 2008, available at, http://www.news.com/830113578_3-9885311-38.html.

106

DHS website, supra note 87.

107

See supra notes 88-90 and accompanying text.

108

73 Fed. Reg. 5272 (Jan. 29, 2008).

109

73 Fed. Reg. at 5334; see also 6 C.F.R. § 37.17 (2008).

110

Id. at 5333.

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with variations on the same name.111 In addition to the myriad of federal documents that utilize

different naming conventions, there are foreign documents, each with their own naming rules and

conventions, that may be presented as well. In short, the absence of any uniformity with respect

to naming requirements makes the REAL ID standard burdensome to implement. Moreover,

commentators noted that not all of the potential name variations will be covered by existing state

laws or regulations. Thus, it remains possible that an individual could have their REAL ID

application rejected because their name variation, while reasonable and perhaps practically

justifiable, does not fall within a state’s established legal exceptions. As a result, it appears that

the burden may fall to the individual applicant to reconcile the names on their various documents

before applying for a REAL ID. DHS has responded to these concerns by permitting any and all

variations to the applicant’s name that are accepted by the issuing state’s laws or regulations.

DHS also asserts that it has modified the language in the final rule so that it more closely adheres

to the naming conventions utilized by the Social Security Administration, Department of State,

and other document-issuing agencies.112

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The final REAL ID regulations contain two provisions relevant to the applicant’s “principal

address.” DHS has defined the phrase “principal residence” to mean the “location where the

person is currently domiciled (i.e., presently resides even if at a temporary address).”113 The first

provision relates to what the individual is required to show when applying for a REAL ID.

According to § 37.11(f), “to document the address of principal residence, a person must present at

least two documents of the State’s choice that include the individual’s name and principal

residence.”114 The second provision relates to what address is required to appear both on the face

of the REAL ID and in the machine-readable portion. Pursuant to §37.17(f), the principal

residence must appear on the REAL ID unless one of the following exceptions applies:

(1) a State law, regulation, or DMV procedure permits display of an alternative address, or

(2) Individuals who satisfy any of the following: (i) If the individual is enrolled in a State

address confidentiality program which allows victims of domestic violence, dating violence,

sexual assault, stalking, or a severe form of trafficking, to keep, obtain, and use alternative

addresses; and provides that the addresses of such persons must be kept confidential, or other

similar program; (ii) If the individual’s address is entitled to be suppressed under State or

Federal law or suppressed by a court order including an administrative order issued by a

State or Federal court; or (iii) If the individual is protected from disclosure of information

pursuant to section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act

of 1996.115

Several concerns continue to be raised about this provision. Among them are the impact on

homeless and low-income individuals who may not have permanent residences; and the effect of

the provision on those persons who, because of personal safety, confidentiality, or other reasons

111

Id. at 5300. In one commonly cited example, the name James Joseph Johnson Jr. may

have had identity documents issued with the name “ Jim Johnson,” “J.J. Johnson,” “Jim

Johnson Jr.,” or “Joe Johnson.”

112

Id.

113

Id. at 5295.

114

Id. at 5333.

115

Id. at 5335.

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may have a legitimate need to keep their address off of identifying documents, but reside in a

state that does not have a formal law, regulation, or DMV procedure permitting them to do so.

With respect to the first concern, DHS has indicated that its final rule grants the states “wide

latitude to address issues concerning an individual’s address of principal residence within their

State-specific exceptions process.”116 In other words, according to DHS, the states will retain

sufficient authority to issue REAL IDs to individuals, including those who are homeless, so long

as the exceptions are properly documented in the state’s issuing system.

With respect to the second concern—personal security and confidentiality issues—DHS indicates

that under the final rule the states have “broad authority to protect the confidentiality of the

address of principal residence for certain classes of individuals.”117 One commentator, however,

noted that only 24 jurisdictions currently have formal confidentiality programs in place that will

satisfy the rule’s specific exception.118 Thus, in those states where formal programs do not

currently exist, it is unclear how the confidentiality of those persons who may be placed at risk

will be protected. Moreover, how those formal programs may come about, should jurisdictions

opt to create them, will vary depending on existing laws and the required changes. For example,

in some states it may be possible for confidential programs to be created either directly by the

governor or by the agency responsible for issuing drivers’ licenses and personal identification

cards, whereas in other states legislative action may be required.

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REAL ID specifically requires states to verify the validity of the supporting documents presented

by the applicant with the document’s issuing agency. Section 37.13 of the final regulation

provides the general standards for completing this verification. First, § 37.13(a) requires the states

to “make reasonable efforts” to ensure that applicants do not have multiple REAL IDs issued

under different identities.119 Second, § 37.13(b) requires the states to verify documents presented

via electronic validation systems “as they become available or use alternative methods approved

by DHS.”120 The regulations proceed to provide for verification requirements for five different

types of documents.

First, with respect to documents presented by applicants that are issued by DHS, such as identity

documents or documents establishing lawful presence in the United States, the regulations state

that they can be verified using the Systemic Alien Verification System for Entitlements

(SAVE).121

Second, concerning Social Security numbers (SSNs), the regulations require verification through

either the Social Security Administration, or another method approved by DHS. One such

alternative, according to DHS, is “AAMVAnet,” which is the network system that the American

Association of Motor Vehicle Administrators (AAMVA) operates to facilitate data verification for

116

Id. at 5302.

Id.

118

Id.

119

Id. at 5334.

120

Id.

121

Id.

117

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state motor vehicle departments and which appears to already support verification of both SSNs

and birth certificates.122

Third, regarding birth certificate verification, the regulations indicate that states “should use the

Electronic Verification of Vital Events (EVVE) system or other electronic systems whenever the

records are available.”123 In the explanatory section of the final rule, however, DHS

acknowledges that EVVE is not yet ready for full implementation.124 Given the unavailability of

the preferred electronic resource, the fact that birth records are retained by the individual states

and not the federal government, and the wording of the regulation, it is unclear what other

methods of birth-certification verification are available. Therefore, there remains an open

question with respect to how the states are going to comply with this requirement.

Fourth, with respect to documents issued by the Department of State (DOS), such as passports,

the regulations require that the states verify the document with DOS or by means approved by

DHS. No specific electronic system or preferred method, however, is indicated in the final rule.

Finally, regarding REAL IDs issued by other states that may eventually be used as a form of

identification, the regulations indicate that they will be required to be verified with the state of

issuance.125 Similar to DOS documents, no specific verification system is mentioned or discussed.

Presumably, the state-to-state information-sharing system envisioned by other sections of the

regulations will provide a mechanism for the verification of these documents. Since no state is

currently issuing REAL IDs, verification does not yet appear to be an issue.

Although the regulations are silent with respect to the verification of an applicants “principal

residence,” the underlying REAL ID statute appears to include this requirement as well. Several

commentators indicated concerns with respect to this, as they noted that no electronic means

currently exist at either the state or federal level that will permit such a verification to occur.126

DHS concurs with this assessment and responds by noting that “[t]he rule gives States maximum

flexibility in determining an individual’s address of principal residence.”127 Despite the statutory

language, because the text of the final regulation is silent regarding verification of principal

residence, it is unclear whether states will actually be required to perform this task to be

considered in full compliance.

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Section 37.19 of the final regulation requires that—to meet the statutory requirement—all REAL

IDs use compatible machine-readable technology. Specifically, the regulations state that “States

must use the ISO/IEC 15438:2006(E) Information Technology—Automatic identification and

122

Id. at 5275.

Id. at 5334.

124

Id. at 5297.

125

Id. at 5334.

126

Id. at 5297.

127

Id.

123

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data capture techniques—PDF417 symbology specification.”128 In addition, the regulations

require that the following data elements be contained on the bar code:

(a) expiration date; (b) full legal name, unless the State permits an applicant to establish a

name other than the name that appears on a source document, pursuant to § 37.11(c)(2); (c)

date of transaction; (d) date of birth; (e) gender; (f) address as listed on the card pursuant to §

37.17(f); (g) unique driver’s license or identification card number; (h) card design revision

date, indicating the most recent change or modification to the visible format of the driver’s

license or identification card; (i) inventory control number of the physical document; (j) State

or territory of issuance.129

The regulations also indicate that 45 states and the District of Columbia already utilize bar codes

that comply with the PDF417 standard.130 However, it appears that a number of states may have

to alter the type of information and method in which said information is stored to comply with the

regulations.

Contrary to the assertion of some REAL ID opponents,131 neither biometric technology nor radiofrequency identification (RFID) is required by the regulations to be used on REAL ID-compliant

licenses or personal identification cards. Although these more advanced technologies are not

required, the machine-readable requirement does raise security and personal privacy concerns that

were addressed by DHS in the final rule. With respect to security of the information contained on

the bar code, many commentators suggested that DHS prohibit the collection and storage of the

data on the bar codes by third parties, specifically private businesses.132 DHS responded by noting

that although the underlying statute does not provide them with the legal authority to prohibit

such data collection, at least four states—California, Nebraska, New Hampshire, and Texas—

currently have such provisions in place, and DHS is supportive of additional state efforts in this

regard.133

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As indicated above, § 202(d) of REAL ID requires states to employ technology to capture digital

images of identity source documents and retain paper copies of source documents for a minimum

of 7 years or digital images of source documents presented for a minimum of 10 years. Given that

these are statutory requirements, § 37.31 of the final regulations contains the necessary language

directing their implementation. In response to comments concerning the sensitive nature of

storing a potentially vast amount of personally identifiable data, DHS has indicated that if

requested by the applicant and permitted by state data retention laws, “a State shall record and

128

Id. at 5336.

Id.

130

Id. at 5305.

131

See, e.g., Legislators Against REAL ID, available at,

http://legislatorsagainstrealid.com/realidisintid.php (claiming that “The REAL ID Act of

2005 implements an international biometric ID system that ... will most certainly cause an

[identification] theft pandemic”).

132

73 Fed. Reg. at 5304.

133

Id.

129

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retain the applicant’s name, date of birth, certificate numbers, date filed, and issuing agency in

lieu of an image or copy of the applicant’s birth certificate.”134

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REAL ID requires states to ensure the physical security of locations where cards are produced

and the security of document materials and papers from which drivers’ licenses and identification

cards are produced. In accordance with this statutory requirement, DHS has promulgated § 37.41,

which mandates that the states submit a single security plan that addresses “[motor vehicle

department] facilities involved in the enrollment, issuance, manufacturing and production of

driver’s licenses and identification cards.”135 Specifically, these regulations call for the security

plan to address the following: (1) physical security of the “[f]acilities used to produce driver’s

licenses and identification cards” as well as the “[s]torage areas for card stock and other materials

used in card production;”136 (2) the security of personally identifiable information maintained at

motor vehicle department locations that are involved in the enrollment, issuance, manufacturing,

and production of drivers’ licenses and identification cards; (3) document and physical security

features of the card, consistent with the REAL ID regulations; (4) facility and information access

controls; (5) periodic training requirements; (6) emergency and incident response plans; (7)

internal audit controls; and (8) “affirmation that the State possesses both the authority and the

means to produce, revise, expunge, and protect the confidentiality of REAL ID driver’s licenses

or [personal] identification cards issued in support of Federal, State, or local criminal justice

agencies or similar programs that require special licensing or identification to safeguard persons

or support their official duties.”137

Although the regulations provide requirements for the security plans, several commentators noted

the lack of standards and defined best practices.138 DHS indicated that it would be working with

DOT, AAMVA, and the states to develop such recommended practices and preferred procedures.

Other commentators raised concerns about the requirements for protection of personally

identifiable information, especially given the mandate that state databases be interconnected.139

DHS responded that it believed its regulation provided sufficient guidance for the protection of

the data, but indicated that the regulations were flexible enough to require additional protections

without embarking on a new rulemaking.140

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Although the statutory text appears to require the states to provide electronic access to their

databases to all other states, it is unclear whether this requirement is contained in the final

regulations. Section 37.33 entitled “DMV Databases” requires that the states must maintain a

database that contains, at a minimum, the following elements: (1) all data fields printed on the

134

Id. at 5309; see also 6 C.F.R. § 37.31(c) (2008).

Id. at 5279.

136

Id. at 5337; see also 6 C.F.R. § 37.41(b)(1) (2008).

137

Id. at 5338; see also 6 C.F.R. § 37.41(b)(8) (2008).

138

Id. at 5309.

139

Id.

140

Id.

135

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face of the driver’s license or personal identification card, individual serial numbers, and the

applicant’s SSN; (2) a record of the full legal name or recorded name without truncation; (3) all

additional data fields included in the machine-readable zone but not printed on the card; and (4)

all motor vehicle drivers’ histories including points and/or suspensions.141 The provision makes

no mention of interconnectivity or access to one state’s database by either other states or the

federal government. Other sections of the final regulations appear to indicate that the state-tostate data exchange and the document verification requirements are related.142 However, it is

unclear what precisely DHS envisions with respect to interstate exchange of the information

contained in the state databases.143

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Section 37.45 of the final regulations governs the background checks required by the REAL ID

statute on all state motor vehicle employees, including contract employees, who are involved in

the “manufacture or production of REAL ID driver’s licenses and [personal] identification cards,

or who have the ability to affect the identity information that appears on the ... cards, or current

employees who will be assigned to such positions.”144 The contents of the check are to include the

following: (1) both a name-based and fingerprint-based criminal history record check (CHRC)

using, at a minimum, the FBI’s National Crime Information Center (NCIC), the Integrated

Automated Fingerprint Identification (IAFIS) database, and state repository records; (2) an

employment-eligibility-status verification to ensure compliance with 8 U.S.C. § 1324a;145 and (3)

a reference check, unless the employee has been employed for at least two consecutive years

since May 11, 2006.146

Employees and applicants for employment can be disqualified if they have been convicted of, or

found not guilty by reason of insanity, of any offense that is listed as a felony in 49 C.F.R. §

1572.103(a).147 In addition, a conviction of a crime as listed at 49 C.F.R. § 1572.103(b)148 if it was

141

Id. at 5337; see also 6 C.F.R. § 37.33 (2008).

See id. at 5308 (stating that “DHS has provided a brief overview of the proposed

architecture for data verification and State-to-State data exchange in the sections above.

This architecture will likely build on the existing architecture of AAMVAnet and the

systems design principles of its hosted applications”).

143

Id. (stating that “DHS will work with DOT, AAMVA, and the States to develop a path

forward for both verification systems and State-to-State data exchange, including criteria

DHS will employ to evaluate the adequacy, security, and reliability of such data

exchanges”).

144

Id. at 5338; see also 6 C.F.R. § 37.45(a) (2008).

145

States are encouraged to use the United States Customs and Immigration Service’s EVerify program, but do not appear required to do so. See id.

146

Id.

147

The list of disqualifying offenses includes the following:

(1) espionage or conspiracy to commit espionage; (2) Sedition, or conspiracy to commit

sedition; (3) treason, or conspiracy to commit treason; (4) a federal crime of terrorism as

defined in 18 U.S.C. § 2332b(g), or comparable State law, or conspiracy to commit such

crime; (5) a crime involving a transportation security incident ... resulting in a significant

loss of life, environmental damage, transportation system disruption, or economic

(continued...)

142

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within seven years preceding the date of employment or release from incarceration within five

years preceding the date of employment is grounds for disqualification. Finally, it is a violation

for the state motor vehicle department to employ any individual whose employment eligibility

under Section 247A of the Immigration and Nationality Act (8 U.S.C. § 1324a) cannot be

verified.

(...continued)

disruption in a particular area, as defined in 46 U.S.C. § 70101; (6) improper

transportation of a hazardous material under 49 U.S.C. § 5124, or a comparable State

law; (7) unlawful possession, use, sale, distribution, manufacture, purchase, receipt,

transfer, shipping, transporting, import, export, storage of, or dealing in an explosive or

explosive device as defined in 18 U.S.C. §§ 232(5), 841(c) through 841(f), and 844(j);

and a destructive device, as defined in 18 U.S.C.§ 921(a)(4) and 26 U.S.C. § 5845(f); (8)

murder; (9) making any threat, or maliciously conveying false information knowing the

same to be false, concerning the deliverance, placement, or detonation of an explosive or

other lethal device in or against a place of public use, a state or government facility, a

public transportation system, or an infrastructure facility; (10) violations of the Racketeer

Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. , or a comparable

State law, where one of the predicate acts found by a jury or admitted by the defendant,

consists of one of the crimes listed in paragraph (a) of this section; (11) attempt to

commit the crimes in paragraphs (a)(1) through (a)(4) and; (12) conspiracy or attempt to

commit the crimes in paragraphs (a)(5) through (a)(10).

148

These offenses include the following:

(i) unlawful possession, use, sale, manufacture, purchase, distribution, receipt, transfer,

shipping, transporting, delivery, import, export of, or dealing in a firearm or other weapon

as defined in 18 U.S.C. § 921(a)(3) or 26 U.S.C. § 5 845(a), or items contained on the

U.S. Munitions Import List at 27 C.F.R. § 447.21; (ii) extortion; (iii) dishonesty, fraud, or

misrepresentation, including identity fraud and money laundering where the money

laundering is related to a crime described in paragraphs (a) or (b) of this section; (iv)

bribery; (v)smuggling; (vi) immigration violations; (vii)distribution of, possession with

intent to distribute, or importation of a controlled substance; (viii) arson. (ix) kidnaping

or hostage taking; (x) rape or aggravated sexual abuse; (xi) assault with intent to kill; (xii)

robbery; (xiii) fraudulent entry into a seaport as described in 18 U.S.C. § 1036, or a

comparable State law; (xiv) violations of the Racketeer Influenced and Corrupt

Organizations Act, 18 U.S.C. § 1961, et seq. , or a comparable State law, other than the

violations listed in paragraph (a)(10) of this section; (xv)conspiracy or attempt to commit

the crimes in this paragraph (b).

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Opponents of REAL ID have argued that its implementation will create a de facto national

identification card.149 Although these arguments have taken many forms, they appear to generally

consist of three basic elements. First, opponents argue that the uniform issuance and verification

standards imposed by the federal government will result in turning state workers into immigration

enforcement officials by forcing them to check the citizenship status of each applicant and will

move states away from the purpose of issuing a driver’s license; namely, ensuring that operators

of motor vehicles meet the minimum state requirements. Second, opponents point to both the

machine-readable technology requirements and state data-sharing proposals as evidence of

substantially increased federal government involvement in the traditionally state-run issuance of

identification documents. Finally, opponents generally note that there appears to be an unlimited

number of potential activities for which REAL ID-compliant licenses could be required. These

could potentially include voting, firearm registration, employment, and receipt of subsidies and/or

other federal or state benefits.

In its discussion of the final rule, DHS specifically indicates that it “does not intend that REAL

ID documents become a de facto national ID and does not support the creation of a national

ID.”150 In addition, DHS notes that it has limited the potential uses of REAL IDs to the purposes

defined in the statute—accessing federal facilities, boarding federally regulated aircraft, and

entering nuclear power plants—thereby limiting the functionality of the card. Finally, with respect

to the database-creation issue, DHS notes that it “does not intend to own or operate a database on

all driver’s license and identification card holders.”151

Although no uniformly accepted definition of a “national identification card” exists, it appears

reasonable to argue that any such definition should include, at a minimum, that all of the cards be

facially identical and that they all be issued by the same federal governmental entity. Under this

standard, it appears difficult to argue that REAL ID is, or could potentially lead to, a national

identification card. Moreover, as discussed above, participation by either the states or individuals

in REAL ID is voluntary, not mandatory. In addition, the act contains specific restrictions on

DHS’s ability to regulate the design and/or appearance of the card. Finally, issuance will continue

to take place on the state level, not by any entity of the federal government.

149

See, e.g., Electronic Privacy Information Center, “National ID and the REAL ID Act,”

available at, http://epic.org/privacy/id-cards/ (arguing that REAL ID creates a de facto

national ID card); American Civil Liberties Union, “Real ID Scorecard,” available at,

http://www.aclu.org/images/general/asset_upload_file162_33700.pdf (asserting that the

final regulations do not prevent REAL ID from becoming a de facto national ID card).

150

73 Fed. Reg. at 5290.

151

Id. at 5291.

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By statute, REAL ID establishes a system of temporary licenses and identification cards that can

be issued by the states to applicants who are not citizens of the United States, but can present

evidence that they are “lawfully present” in the United States.152 Accordingly, § 37.21 of the final

regulations implements these requirements.153 Thus, non-citizens in the United States who can

demonstrate lawful presence in the United States are eligible to apply for and receive REAL IDs.

However, the cards must be limited in validity commensurate with the time limit on the

individual’s lawful presence in the United States,154 and must clearly indicate, both on the face

and machine-readable zone, that they are temporary or term-limited.

Recently, some states—Oregon, Washington, and Maryland—have had attention drawn to the fact

that by state law they permit the issuance of drivers’ licenses and personal identification cards to

any person, regardless of their immigration status in the United States.155 Other states such as

New York, Michigan, and California, have indicated that they will either cease or not take

legislative action to permit undocumented persons to receive drivers’ licenses or personal

identification cards—i.e., New York and California.

It should be noted that even with the adoption and implementation of REAL ID, the decision to

issue drivers’ licenses or personal identification cards to persons regardless of their immigration

status remains entirely with the issuing states. In other words, this choice of whom to issue nonREAL ID-compliant drivers’ licenses and personal identification cards to does not appear to be

altered or preempted. In fact, the statute clearly contemplates the issuance of documents by states

that do not comply with REAL ID. Should states opt to do so, the law requires only that the noncompliant documents use a unique color identifier or design to alert officials that the document is

not to be accepted for any official purpose. Thus, it appears that states may opt to issue multiple

documents and still be in compliance with the law. For example, as reported, New York’s

proposal appeared to call for a three-tiered system, with state departments issuing REAL IDs in

152

See supra note 17 and accompanying text.

See 73 Fed. Reg. at 5336; see also 6 C.F.R. § 37.21 (2008).

154

For example, an individual who presents a valid, verifiable visa permitting residence

in the United States for only four years, may only receive a REAL ID that is valid for

four years (even if the state law permits REAL IDs to be issued for longer than four

years).

155

Currently, there appear to be nine states that issue drivers’ licenses to undocumented

individuals: Hawaii, Maine, Maryland, Michigan, New Mexico, Oregon, Utah, and

Washington. See, e.g., Michele R. Marcucci, Feds may pre-empt license push, Oakland

Tribune, May 5, 2005, available at, http://findarticles.com/p/articles/mi_qn4176/

is_20050503/ai_n15826897. Michigan’s Attorney General on December 27, 2007,

however, issued an opinion which held that only lawful residents of Michigan can receive

a Michigan driver’s license and that lawful presence in the United States is required to be

a Michigan resident under Michigan law. See Michigan Att’y Gen. Op. #7210 (Dec. 27,

2007), available at, http://www.ag.state.mi.us/opinion/datatfiles/2000s/op10286.htm.

Legislation appears to have been introduced in the Michigan legislature to codify this

opinion.

153

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compliance with the regulations, enhanced drivers’ licenses (EDLs)156 to citizens upon request,

and non-compliant drivers’ licenses and personal identification cards to those who either did not

want or were not eligible for the other two types of documents.157 Such a scheme, while arguably

costly and very complicated, nevertheless, appeared to be in full compliance with REAL ID and

all other federal laws.

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The Western Hemisphere Travel Initiative, which can be found at § 7209 of the IRTPA, requires

that the Secretary of Homeland Security, in consultation with the Secretary of State, expeditiously

develop and implement a plan requiring that all travelers, including citizens of the Untied States,

produce a passport, other document, or combination of documents, “deemed by the Secretary of

Homeland Security to be sufficient to denote identity and citizenship,” when entering the United

States.158 The use of the conjunctive “and” generally indicates that both elements, identity and

citizenship, must be denoted by the documents presented.159

Although REAL ID contains increased security requirements for state-issued drivers’ licenses and

personal identification cards, these requirements appear to be focused on ensuring that the

documents accurately reflect identity. REAL ID does not appear to require that the licenses or

identification cards in any way “denote citizenship” in the United States. In fact, as noted above,

REAL ID contains specific provisions that permit the issuance of licenses and identification cards

to non-citizen residents of the United States who, by producing the required documentation and

having it verified as authentic by the issuing agency, can demonstrate lawful presence in the

country.160 Given the absence of requirements relating to citizenship, it does not appear that

standing alone a driver’s license or personal identification card would satisfy the statutory

standard established by § 7209 for acceptable documents to be shown upon entrance to the United

States. At this time, however, it remains unclear whether or not a driver’s license or personal

identification card, in conjunction with other presented documents may be considered sufficient

to “denote identity and citizenship” as required by the statute. It should be noted, however, that

156

See infra note 158 and accompanying text.

See, e.g., Fernanda Santos, Real ID That Spitzer Now Embraces Has Been Widely

Criticized, NY TIMES, B1 (Oct. 29, 2007), available at, http://www.nytimes.com/2007/

10/29/nyregion/29real.html?_r=1&oref=slogin (noting the proposal for a three-tiered

licensing system, “two that would meet new federal security regulations and a third that

would be available to illegal immigrants”).

158

IRTPA, supra note 1 at § 7209(c)(2) (emphasis added).

159

See, e.g., Pueblo of Santa Ana v. Kelly, 932 F. Supp. 1284, 1292 (D. N. Mex. 1996).

160

See 2005 Emergency Supplemental, supra note 15 at §202(C)(2)(c).

157

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the use of state-issued drivers’ licenses or personal identification cards is not included in the Final

WHTI Land/Sea Rule issued by the State Department and DHS on March 27, 2008.161

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To implement WHTI, DHS and the Department of State have pursued the development of

alternative identification documents that satisfy the standards as required by Congress. Most

notably, WHTI requires that the documents shown denote “both identity and citizenship” to be

compliant. At the time WHTI was enacted, the only U.S.-issued document that satisfied this

requirement was a passport. Since WHTI’s adoption, several jurisdictions have expressed interest

in creating and issuing a document known as an enhanced driver’s license (EDL). EDLs will

contain on the face of the license as well as in the electronic components information relating to

the holders citizenship; therefore, making the document WHTI compliant. Currently, the state of

Washington has a pilot program in place that permits the issuing of EDLs to persons who provide

verifiable proof of citizenship and pay an additional fee when they apply for issuance or renewal

of their Washington driver’s license. According to DHS’s Final Rule for WHTI Land/Sea Entry,

New York, Vermont, and Arizona are also states that have signed Memoranda of Understanding

with DHS for EDL pilot programs of their own.162

Although EDLs and REAL ID are being implemented by the same agency, there are two major

differences between the programs. First, unlike REAL ID, EDLs require that the cardholder be a

U.S. citizen. Second, EDLs will implement radio-frequency identification (RFID) technology,

whereas REAL IDs are only required to use a two-dimensional bar code system.163 Thus,

although the two programs are related, they are not interchangeable. It may be possible, however,

for an EDL to also qualify as a REAL ID, provided that the document satisfies the requirements

of both programs. On the other hand, just because individuals have a REAL ID, it does not

automatically follow that they qualify for an EDL, or can use their REAL ID as part of the WHTI

program. One way of thinking about the relationship between these two programs may be that

some EDLs will comply with REAL ID, but not all REAL IDs will qualify as WHTI-compliant

EDLs. In other words, only after a careful review of the issuing requirements and document

contents will one be able to determine whether a specific state-issued driver’s license or personal

identification card qualifies under neither, both, or only one of the two programs.

161

See DHS/DOS, WHTI LAND/SEA FINAL RULE, 135, available at, http://www.dhs.gov/

xlibrary/assets/whti_landseafinalrule.pdf. According to the final rule, U.S. citizens must

present a valid unexpired passport upon entering the United States unless one of the

following documents is presented: (1) Passport Card; (2) Merchant Marine Document;

(3) Military Identification; or (4) Trusted Traveler Program Identification Document

(includes NEXUS, FAST, SENTRI). Id. The only other exception applies to citizens who

are passengers on cruise ships that stay entirely within the Western Hemisphere. Those

passengers, according to the rule, may present “government issued photo identification ...

in combination with either an original or a copy of his or her birth certificate, a Consular

Report of Birth Abroad issued by the Department of State, or a Certificate of

Naturalization issued by U.S. Citizenship and Immigration Services for entering the

United States ...” Id. at 136.

162

Id. at 14.

163

See supra note 124.

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(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

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