When the REAL ID Act passed in 2005, Senator Joe Lieberman (D‑CT), no civil libertarian, called the national ID law “unworkable” for good reason. It seeks to herd all Americans into a national ID system by coercing states into issuing drivers licenses (and sharing information about their drivers) according to complex federal standards.
The hook REAL ID uses in seeking to dragoon states into compliance is the threat that TSA agents will refuse IDs from non‐complying states at our nation’s airports. The threat is an empty one. Consistently over years, every time a DHS‐created compliance deadline has come around, state leaders with spines have backed the Department of Homeland Security down. I detailed the years‐long saga of pushed‐back deadlines last year in the Cato Policy Analysis, “REAL ID: A State‐by‐State Update.”
DHS has stopped publishing deadline changes in the Federal Register–perhaps the endless retreats were getting embarrassing–and now it has simply said on its website that TSA enforcement will begin sometime in 2016. But it’s evidently back‐channeling threats to state officials. Those folks–unaware that REAL ID doesn’t work, and disinterested in the allocation of state and federal power–are lobbying their state legislatures to get on board with the national ID program.
New Hampshire is one state where this has occurred. Worries about New Hampshirites ability to travel by air recently caused the Department of Public Safety (which houses New Hampshire’ motor vehicle bureau) to seek legislation that would move the state toward REAL ID compliance.
New Hampshire is special because it’s where the first volley in the REAL ID rebellion was thrown. In 2006, after a bill to reject REAL ID got a head of steam in New Hampshire, states across the country rejected the national ID law.
In testimony I delivered to the New Hampshire Senate Transportation Committee yesterday, I detailed this history, telling the story of how DHS has repeatedly backed off its threat to inconvenience travelers when states have rejected this unfunded federal surveillance mandate. The circumstances today are unchanged: If the TSA starts refusing IDs, the TSA, the DHS, and their supporters in Congress will take the blame. The DHS knows this, which is why they always back down before push comes to shove. States should have no fear of TSA interfering with their residents’ travels because of REAL ID.
Rejecting REAL ID is good security, too. If the nation were to spend billions of dollars on REAL ID compliance, undercutting all our privacy and autonomy a little more by putting us into a national identity system, we’d get nothing remotely comparable in security gains. Proponents of this national ID program have never shown how it would provide cost‐effective security.
My testimony may have helped. The strong presence of the New Hampshire Liberty Alliance showed the committee that this was not a business‐as‐usual bill. And I think really excellent, persuasive testimony from New Hampshire Civil Liberties Union Executive Director Devon Chafee carried the day. The committee voted unanimously to reject the REAL ID compliance bill. Once they knew that the DHS is brandishing empty threats to inconvenience travelers at TSA checkpoints, they ended their state’s brief flirtation with REAL ID compliance.
This is information legislators across the country need. A number of states could emulate New Hampshire’s rejection of REAL ID. There are still many places where legislators labor under the impression that REAL ID imposes obligations on them, including South Dakota, California (see also), New Mexico (see also), Hawaii (see also; see also; see also; see also), Idaho, Oklahoma (see also), Arizona (see also), Rhode Island (see also; but see), Illinois, Iowa, New York, and Florida.
