REAL ID Without Real Debate

by Matt Sundeen

On January 11, the U.S. Department of Homeland Security released the long-awaited final regulations for implementing new federal standards for state-issued driver's licenses found in the infamous REAL ID Act of 2005.  Many of the negative reactions to REAL ID, both before and after the event, focused on the enormous cost burden for states and the perceived erosion of privacy caused by the new provisions.   Many people were also concerned about the lack of process when Congress adopted the bill in the first place.  And now, the rule-making process may exacerbate this process problem by not giving state legislatures enough time to deliberate on the issue.

Last summer, I spoke about the federal REAL ID Act before the New Mexico Legislature's interim transportation study committee.  After my 20 minute presentation, the next speaker, Jim Harper of the Cato Institute, began his remarks to the legislators by saying, "Congratulations.  You have now spent more time debating REAL ID than Congress did."

Jim wasn't joking, and he was right on point.  The REAL ID Act is a big deal.  It replaced 99 years worth of state driver's license work with new federal standards.  Such a major piece of legislation should have been carefully vetted through a legislative process that included public hearings, public debate and negotiation among members of Congress. 

Instead, REAL ID was attached as an amendment to a must-pass war spending and tsunami relief bill in 2005 and moved through Congress after no hearings and no public deliberation.  It terminated a federal "negotiated rulemaking" process, passed by Congress in 2004, that had brought together numerous state and federal stakeholders to develop the best strategy for securing driver's licenses.  REAL ID also effectively ended many state driver's license security improvement efforts as state legislators and motor vehicle administrators waited for final REAL ID regulations.

[Read about how the federal regs affect state legislative deliberation after the jump.]

Now, federal delays in issuing REAL ID rules mean that many state legislatures may not have enough time to consider official responses to the law.  DHS issued final regulations a mere 120 days before the May 11, 2008 deadline for REAL ID compliance.  Forty-three state legislatures will meet before then, but many of their sessions are constitutionally limited in length and scope during the second year of a biennium.  These restricted states—and the ones not scheduled to meet before May 2008—may need to call special sessions if they are to comply with the deadline.

"The feds really didn't work with us on this one," complains Washington Senator Mary Margaret Haugen.  "They don't seem to understand that we're not in session all the time like Congress.  Our session lasts only 60 days.  It's totally unrealistic to expect any changes."

DHS seems eager to get as many states to comply with REAL ID as possible.  Imagine the confusion and anger that will occur on May 12, 2008 if millions of Americans attempt to board airplanes and enter nuclear power plants with driver's licenses from noncompliant states.  So the new REAL ID regulations allow states to extend deadlines past May 11 by simply asking DHS for more time. But will that be enough?  Perhaps, after 3 years of no deliberation, state lawmakers will decide we should finally take the time for real debate.

Matt Sundeen covers transportation and drivers' license issues in NCSL's Denver office.

Comments

[Rick]

Makes you wonder if any of our elected representatives on the Federal level have ever heard of the 10th amendment. Hmmm!