REAL ID was introduced as the REAL ID Act of 2005 (H.R. 418) on January 26, 2005 by Representative James Sensenbrenner (R-5th WI). On February 10, the House passed REAL ID by a 261-161 vote, with bipartisan support and 140 cosponsors. In March, the bill passed again as part of the House Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief 2005 (H.R. 1268).
Unlike the House, the Senate did not include REAL ID in its emergency appropriations legislation. Still, it was included in the House-Senate conference report.
On May 11, 2005, President Bush signed the emergency appropriations into law, thus approving REAL ID.
On January 11, 2008, the Department of Homeland Security (DHS) released the final rule for REAL ID implementation (available at http://www.dhs.gov/xnews/releases/pr_1200065427422.shtm), which sets minimum requirements that states must meet if their driver’s licenses are to be accepted by the federal government as valid identification.
REAL ID initially included provisions that would permit DHS Secretary to waive “all laws” that the Secretary in his or her own discretion – and without judicial review – determines would interfere with construction of barriers and roads along our nation’s borders. This includes permitting a federal official to override environmental, health and safety, civil rights, labor, and criminal laws, even freedom of information laws. Although language was changed to permit judicial review of the DHS Secretary’s determination, the scope of DHS authority was arguably expanded through modifications made during the conference process that waive “all legal requirements,” not just “all laws.” Moreover, although providing for judicial review, the final version only allows for review within a 60-day window of appeal. Therefore, even though the Secretary’s action is subject to review by a judge, the law paints with too broad a brush.
REAL ID effectively requires all states to restrict access to driver’s licenses by requiring them to ask applicants for proof of their lawful presence in the United States. These provisions undermine national security by pushing people into the shadows and fueling an increase in fraudulent identification documents. Accordingly, these provisions make us less safe and do not effectively prevent future terrorist attacks. Indeed, these provisions would not have prevented a single 9/11 hijacker from obtaining a driver’s license or boarding a plane. The 9/11 hijackers all entered the United States with legal documents that were obtained fraudulently. Their driver’s licenses were issued based on what appeared to be valid forms of identification and residency. As 9/11 demonstrates, denying undocumented immigrants driver’s licenses will not prevent future terrorists from boarding planes using passports or other valid documents.
Moreover, denying undocumented immigrants driver’s licenses makes us less safe. Currently, there are an estimated 12 million undocumented immigrants in the United States, many of whom have to drive on U.S. roads to work, whether or not they have a driver’s license. This law causes these drivers not to participate in driver’s education classes or driver’s tests, to be unable to get insurance, and to be more likely to flee the scene of an accident.
REAL ID also creates the specter of a national ID card by repealing Section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004, which addressed the issue of national standards for driver’s licenses and personal identification cards. Although Section 7212 set minimum standards for federal acceptance of driver’s licenses and personal identification cards to include certain specific information, the regulations prohibit infringement on the states’ ability to set their own criteria concerning the categories of individuals who are eligible to obtain a driver’s license or personal identification card. REAL ID essentially trumps states’ rights to set their own verification standards, replacing them with a single specific national standard.
Another issue of concern is the linking of states’ motor vehicle databases. Forcing states not only to monitor immigration status but also to link databases with other states raises serious privacy concerns.
REAL ID forces states to make driver’s licenses expire at the same time as immigration visas, in essence forcing state motor vehicle offices to monitor immigration status and enforce federal immigration laws. This is problematic on many levels, especially since immigration law is even more complicated and complex than the tax code. The motor vehicle offices’ staffs are not immigration law experts, and a lack of training and understanding undoubtedly leads to the denial of driver’s licenses to United States citizens and other lawful immigrants. Secondly, there is no uniform documentation for visas and immigration status, nor do they have simple expiration dates. For example, a non-immigrant who has applied for a visa extension is lawfully present while awaiting a decision on the application. Therefore, an immigrant can be lawfully present even though her visa has expired.
REAL ID also requires asylum applicants to prove they were persecuted on the basis of race, religion, national origin, political opinion, or social group. They are not required to obtain corroborating evidence of their persecution, but the burden of proof still lies with them. Judges determine the credibility of individuals’ claims based on the plausibility, responsiveness, candor, and consistency of individuals’ statements. Further, REAL ID bars any court, including the Supreme Court, from reviewing discretionary judgments, decisions, or actions taken by DHS or the Department of Justice (DOJ); district courts can only review suspected violations of the Constitution.
These provisions do not enhance national security since terrorists and those who pose a threat to the security of our country are already excluded from asylum. They deny asylum to people who cannot prove the motive of their persecutors or whose demeanor is inconsistent with an immigration judge’s expectations.
Ultimately, REAL ID makes it more difficult for immigrants to lead safe and productive lives in the United States. Its attacks on their rights and liberties further chips away at the rights and liberties of their fellow Americans. It does not make us more safe, and it comes at a great cost to millions of Americans – citizens and non-citizens alike.