DHS Announces All 50 States Are Compliant with REAL ID Act Standards

More than 15 years after Congress's mandate, but better late than never

By Andrew R. Arthur on September 11, 2020

On Thursday — one day before today's 19th anniversary of the terrorist attacks of September 11 — DHS announced that all 50 states are now in compliance in issuing identification cards in accordance with the standards in the REAL ID Act. This comes more than 15 years after Congress set those requirements. Better late than never, but respectfully, it took much longer to achieve total compliance than Congress ever intended.

By way of background, section 202 of the REAL ID Act of 2005 mandated minimum security standards for the issuance of state driver's licenses and identification cards. Under that provision, federal agencies are prohibited from accepting "for any official purpose" state driver's licenses or identification cards unless those documents meet the standards set forth therein.

DHS explains these "official purposes" are "accessing Federal facilities, entering nuclear power plants, and boarding federally regulated commercial aircraft." Few of us will be headed to Three Mile Island anytime soon, but hopefully we will be taking to the air again in short order.

The REAL ID Act was signed on May 11, 2005. Section 202(a)(1) therein gave states three years, until May 11, 2008, to come into compliance, although section 205(b) granted the secretary of DHS authority to grant states extensions to meet those requirements if they provided "adequate justification for noncompliance".

I am as strong a believer in federalism as you will find, but Congress was more or less forced to act on this issue. As the Center has noted, this was an explicit recommendation of the 9/11 Commission, one it deemed crucial to protect the national security.

In its report, the Commission noted: "All but one of the 9/11 hijackers acquired some form of U.S. identification document, some by fraud. Acquisition of these forms of identification would have assisted them in boarding commercial flights, renting cars, and other necessary activities." Accordingly, it recommended:

Secure identification should begin in the United States. The federal government should set standards for the issuance of birth certificates and sources of identification, such as drivers licenses. Fraud in identification documents is no longer just a problem of theft. At many entry points to vulnerable facilities, including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists. [Emphasis added.]

Despite the grounding of these requirements in national security concerns, there was significant resistance by many states and interest groups to implementation of the standards in the REAL ID Act. As a result, the compliance deadlines in the REAL ID Act were extended. As the Center reported in 2013: "The original deadline for state compliance was 2008, later postponed to 2011, then 2013, and now 2017. It seems likely the deadline will be extended yet again, permitting several states to continue issuing licenses to illegal aliens."

In a March post, I described this assessment as "prescient", as the deadline was eventually pushed back to October 1, 2020, only to be extended once more, in response to the Wuhan coronavirus pandemic that shut most DMVs, to its current deadline, October 1, 2021 (the first day of FY 2022).

Now that all of the states are compliant, even that late date does not leave much time for Americans to get REAL ID Act documents. DHS notes that: "To date, the 50 states have issued more than 105 million REAL ID-compliant driver's licenses and identification cards, representing 38 percent of all driver's licenses and identification card holders." That means that 62 percent (more than 170 million documents) are not compliant, and will have to be replaced.

Take my advice — don't wait until next fall to get a new driver's license or state ID card if you do not have a REAL ID document.

For reference, the compliant ones should have a star in the upper right- or left-hand corner. State-issued enhanced driver's licenses (EDLs, which essentially double as international travel documents for limited purposes) may not have the star, but will be accepted for official REAL ID Act compliance purposes.

I have received two REAL ID Act driver's licenses — one from my former home state of Maryland and one from my current home state of Virginia — and each DMV was picky about the documents that I needed to present to get one. Check your local DMV website to figure out exactly what documents you will need to present, or you may stand in line for hours only to have to return.

And, whatever you do, don't head to the airport for your honeymoon on October 2, 2021, without making sure that your documents will be accepted at the TSA checkpoint. If you end up stuck in Cleveland rather than Aruba, don't blame me — or Congress or DHS. You already got a 13-year reprieve.