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The "REAL ID" Act: A Real Nightmare For Department Of Defense

by Margaret Stock

If you watched or heard the congressional debate over H.R. 418, the "REAL ID Act of 2005," you might have thought this proposed law—which passed the House of Representatives Friday, February 11, 2005, by a vote of 261–161—was all about stopping terrorists from getting on airplanes. But you would be wrong. This bill—which sets new rules for state motor vehicle departments (DMVs) — promises to be a more of a nightmare for Department of Defense (DoD) than a deterrent to any terrorists.

Consider this language, which is found in the section creating federal standards for state driver's licenses and identification cards: "Beginning 3 years after the date of the enactment of this Act, a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a State to any person unless the State is meeting the requirements of this section."

No state currently meets the requirements of the proposed law, and it's unlikely that many will be able to comply within three years. The "REAL ID" Act would require, among other things, that each state create an expensive new computer system for issuing state driver's licenses and identification cards; obtain security clearances for its DMV employees; verify with the issuing agency the validity of each document offered by an applicant in support of a driver's license application; put digital photos on all licenses; print the principal residence of the applicant on the face of the license; ensure that all prior licenses have been terminated before issuing a new one; verify the immigration status of all applicants; and color-code licenses to show that the state has complied with the law. While all these goals may be laudable, achieving them any time soon is almost impossible, particularly within three years. And yet any license issued in violation of this law cannott be used "for any official" federal purpose unless a special waiver is granted by the secretary of homeland security.

Here are some "official" federal purposes for which state driver's licenses and identification cards are commonly used by military members, their families, and their friends:

• Enlisting in the military
• Obtaining an initial military identification card
• Obtaining a U.S. passport
• Voting in a federal election
• Registering a vehicle on a military installation
• Entering a military installation
• Driving on a military installation
• Entering a federal building
• Writing a check to a federal agency
• Obtaining federal firearms licenses
• Boarding an airplane
• Boarding an Amtrak train
• Obtaining federal hunting or fishing licenses [ Ed. added 3/3/05 ]

If this law passes, military members and their families won't be able to do any of these things with their state driver's licenses and ID cards—unless they are lucky enough to be residents of a state that manages to meet the threeyear deadline for compliance.

Military personnel will be harmed by this law in other ways as well: Deployments often prevent soldiers from renewing their licenses in a timely manner, and many states give them "automatic extensions." These extensions would be barred. Many states currently issue licenses to military members that are "valid without photo." This practice will now be barred by federal law. The REAL ID Act on its face also bars military police and other federal law enforcement officials from using state driver's licenses and ID cards to identify criminal suspects.

At a time when federal and state budgets are under tremendous pressure, the Congressional Budget Office (CBO) estimates the cost of complying with "REAL ID" to be in excess of $120 million—$20 million more than the cost of complying with the legislation enacted last year in Public Law 108-458, the Intelligence Reform and Terrorism Prevention Act of 2004. This CBO estimate, however, is probably a vast underestimate of the true cost of the proposed law. Worse, Congress has not agreed to pay for the required upgrades to state DMV systems, making "REAL ID" yet another "massive unfunded mandate," according to both the National Governor's Association and the American Association of Motor Vehicle Administrators. If the federal government isn't going to pay to implement this law, most states won't be able to pay for it without raising taxes—and all of their residents will be punished accordingly

Indirectly, however, DoD will suffer— because this law threatens to disrupt thousands of routine yet official acts that occur daily on every military post in the world. Those who already have military ID cards or who carry a passport around at all times can avoid some of the problems with this law—but a US passport or military ID doesn't give a person the right to drive on a military base.

Also, anyone without a passport or other federal ID prior to the effective date of the law will have difficulty obtaining one unless she can produce some other valid government-issued picture identification, such as a foreign passport. Strangely, this law will make it easier for foreigners or naturalized citizens to travel than nativeborn Americans: The law allows the use of a foreign passport, but bars the use of American state-issued licenses and identification cards.

REAL ID's sponsors claim the law will stop terrorists from getting on airplanes. The flaw in this logic is that the 9/11 terrorists did not need state driver's licenses to board the airplanes they hijacked—they could have used their foreign passports, and at least one of them did. Is meeting a false "security gap" a reason to spend millions forcing the states to conform to the "REAL ID" requirements?

REAL ID's sponsors are seeking support in the Senate. Their bill, however, goes far beyond the common-sense driver's license provisions enacted last year in Public Law 108-458, the Intelligence Reform and Terrorism Prevention Act of 2004. The "REAL ID" Act almost completely preempts state regulation of driver's licenses and effectively creates a national ID card by federal fiat. The proposed law threatens vital functions of the Department of Defense, and promises unforeseen headaches for military personnel and their family members. The reforms enacted late last year by Congress were sensible and worthy, but the "REAL ID" Act is a recipe for chaos.

Originally appeared in The Officer, April 2005. Reprinted with permission from the Reserve Officers Association.

About The Author

Margaret Stock is an associate professor of law in the Department of Law, United States Military Academy, West Point, N.Y.; an attorney; and a lieutenant colonel in the Military Police Corps. The opinions expressed are the author's, and not the opinion of the United States Military Academy, the Department of the Army, the Department of Defense, or any other government agency.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.