REAL ID Delayed Yet Again

It makes sense at the moment, but requirements should have been in place years ago

By Andrew R. Arthur on March 27, 2020

Topic Page: Covid-19 and Immigration

  • The REAL ID Act of 2005 set requirements that state driver's licenses must meet in order for them to be accepted by federal agencies for "official purposes".
  • Among those official purposes are boarding federally regulated commercial aircraft.
  • On March 26, DHS extended the deadline for compliance with those requirements from the previous deadline of October 1 of this year to October 1, 2021, in response to the Wuhan virus.
  • The original deadline for compliance was May 11, 2008, although DHS was given authority to grant states extensions "if the State provides adequate justification for noncompliance."
  • Those requirements were based on specific recommendations by the 9/11 Commission to respond to the threat of terrorism in the United States and to prevent terrorist attacks.
  • Terrorism remains a real threat to the American people — just days ago, a Pakistani national, who had expressed his desire to conduct "lone wolf" terrorist attacks in the United States, was arrested by federal authorities.
  • Incredibly, however, almost 15 years after the enactment of the REAL ID Act, its requirements have not been met, and likely will not be met for months to come.

On March 26, 2020, Acting Secretary of Homeland Security Chad Wolf issued a press release in which he announced that the deadline for compliance with the identification requirements in the REAL ID Act would be extended from October 1, 2020, until October 1, 2021. It makes sense, given the fact that, as that press release notes: "States across the country are temporarily closing or restricting access to DMVs." The real question is why those requirements were not implemented years ago.

By way of background, section 202 of the REAL ID Act of 2005 sets 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 the state meets the standards set forth therein.

The Department of Homeland Security (DHS) explains that these "official purposes" are "accessing Federal facilities, entering nuclear power plants, and boarding federally regulated commercial aircraft." I would note that at the present time, 48 states, the District of Columbia, and three territories (Puerto Rico, Guam, and the Virgin Islands) are compliant with those requirements. American Samoa and the Northern Mariana Islands are under review by DHS, while Oklahoma had already received an extension until September 18, 2020, and Oregon had received one until August 7, 2020.

Of course, not all of the residents of even the compliant states have received REAL ID Act driver's licenses yet, and the standards are admittedly somewhat stringent. That said, I went through the process for obtaining a REAL ID driver's license in Maryland (where the DMV is well organized), and then went through it when I moved to Virginia (where it is not). Frankly, dealing with the DMV lines in Arlington was much more of a hassle than gathering the documents required for compliance.

With those and the DMVs in other states closed because of Wuhan virus restrictions, the extension makes sense. But we should never have been in this position to begin with.

The REAL ID Act was enacted almost 15 years ago. 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 Homeland Security authority to grant states extensions to meet those requirements if they provided "adequate justification for noncompliance."

This was not some Kafkaesque power grab by Congress — as the Center has noted, this was a recommendation of the 9/11 Commission, intended 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.]

Nonetheless, there was pushback by many states and interest groups to implementation of the standards in the REAL ID Act and, consequently, 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."

That was prescient. As noted, the deadline was eventually pushed back to October 1, 2020, and has now been pushed back again.

Although the American people and our government are currently (and appropriately) primarily focused on keeping our communities (and economy) healthy, the threat of terrorism remains. For example, on March 19, Muhammad Masood, a 28-year-old Pakistani national and physician who was in the United States on an H-1B visa, was arrested by the FBI on terrorism charges in Minnesota.

According to prosecutors:

Between January 2020 and March 2020, Masood made several statements to others, including pledging his allegiance to the Islamic State of Iraq and Al-Sham (ISIS) and its leader, and expressing his desire to travel to Syria to fight for ISIS. Masood also expressed his desire to conduct "lone wolf" terrorist attacks in the United States.

That was just days ago, but the story largely flew under the wire as the public deals with school closures and "shelter in place" orders.

DHS was left with little choice but to extend the REAL ID deadline yet again. But it was a decision that it should never have had to make, given the fact that the requirements therein should have been implemented years ago.