In 2005, Congress passed the REAL ID Act in order to meet the 9/11 Commission’s recommendation that the federal government set standards for the issuance of state driver’s licenses. This was recommended after it was determined that the 9/11 terrorists had nearly 30 driver’s licenses among the 19 of them, each with varying information. Twenty years after the 9/11 attack, this recommendation remains unrealized, with the latest deadline for implementation having been pushed back by the Department of Homeland Security (DHS) to May 3, 2023.
Among other things, the REAL ID Act requires states to indicate on a driver’s license if a person is barred from using it for federal purposes such as boarding airplanes or entering government buildings. States that issue driver’s licenses to illegal aliens are required to make the license different from a standard license so that Transportation Security Administration (TSA) officials and security guards at government buildings can easily determine that the holder must be stopped. But as of this writing, because of repeated extensions by DHS, anyone can board airplanes with low-standard driver’s licenses that are not REAL ID compliant, including illegal aliens with largely unknown backgrounds.
The following states issue driver’s licenses to illegal aliens: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Jersey, New Mexico, New York, Oregon, Utah, Vermont, Virginia, and Washington. To obtain one, an illegal alien must submit to the state some form of documentation, which might be a foreign birth certificate, a foreign passport, or some largely unverifiable consular identification document. The FBI warned about the unreliability of consular cards, like Mexico’s matricula consular which have been passed out like candy by the Mexican government, in congressional testimony titled “Consular ID Cards in a Post-9/11 World”.
In California, the standards for an illegal alien to obtain a driver’s license are so low that DHS’s failure to fully implement the REAL ID Act means the entire nation’s security is being subjected to California’s dangerous standards. For example, an illegal alien with an unknown background can obtain a California driver’s license with nothing more than an unverifiable foreign consular card and a letter from a non-profit claiming that the alien lives in the state. But if that low standard can’t be met, California may still allow the person to obtain a driver’s license after a secondary interview. Try out the California DMV’s automated checklist for illegal alien licenses (a product of state law AB 60) and click the “I do not have any of the documents listed above” for each document question. The response is: “Based on your selection(s) you may be eligible to obtain a CA DL pursuant to AB 60.”
The 9/11 Commission explained in its report: “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.” It explained that “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.”
Early in the Trump administration, I recommended that DHS put video public service announcements at airports, as the Obama administration had done, reminding the public of the impending REAL ID deadline. I noted that the deadline (at the time) was one month before the presidential election and that it might become a relevant issue. It seemed odd to me that the Trump administration’s DHS secretaries were not on a video loop at major airports, a simple tool that had been effective in getting states to act. Nevertheless, DHS did produce a video with DHS Secretary Chad Wolf in January 2020. Of course, that video has the secretary announcing October 2020 as the deadline; the video description was later edited by TSA to note that the deadline had been changed to October 2021. The TSA has not edited it again to announce that the deadline has been extended, yet again, to May 2023.
The number of DHS staff dedicated to implementing REAL ID is very small, and it is that group of people that has routinely recommended delays in implementation to the DHS secretary. It’s possible that the delays are a form of self-preservation for this group of government employees: If the implementation is indefinitely delayed, then their recommendations will be needed indefinitely. Regardless, many states have been dragging their feet and DHS has been overly accommodating for years on end.
The timeline of announcements from DHS on the implementation of this 2005 law is an interesting read and a clear indicator that DHS needs to bring this to a conclusion. Below are the highlights, starting in 2009 under the Obama administration.
In December 2009, DHS announced that Secretary Janet Napolitano was extending the end-of-year deadline because states would not meet it, explaining: “DHS is extending the Dec. 31 REAL ID material compliance deadline. The May 10, 2011, deadline for full compliance remains in effect, and the Department will continue to work closely with states to meet this deadline.”
In December 2012, DHS announced that only 13 states had met the law’s standards and that beginning the following month, all the other states would get a deferment: “Beginning January 15, 2013, those states not found to meet the standards will receive a temporary deferment that will allow Federal agencies to continue to accept their licenses and identification cards for boarding commercial aircraft and other official purposes.” This was after “DHS awarded $263 million in grants” to the states from FY 2008 to 2011.
In December 2013, DHS announced it was giving extensions again, explaining that it had “determined that forty-one states and territories are either fully compliant with the REAL ID standards or have made sufficient progress to qualify for an extension.” DHS also announced that it was going to implement all of the REAL ID requirements in a phased process, explaining that Phase 4 — arguably the most important part of the law, which prevents people with low-quality IDs from boarding airplanes — would “occur no sooner than 2016.” In other words, the Obama administration wanted to push it until the next administration.
In January 2016, DHS Secretary Jeh Johnson released a statement explaining that Phase 4 would be achieved within two years unless DHS gave states an extension: “Effective January 22, 2018, air travelers with a driver’s license or identification card issued by a state that does not meet the requirements of the REAL ID Act (unless that state has been granted an extension to comply with the Act) must present an alternative form of identification acceptable to the Transportation Security Administration (TSA) in order to board a commercial domestic flight. Over the next two years, those states that are not REAL ID compliant are strongly encouraged to meet the requirements of the law for the benefit of their residents.”
As of the date of that announcement, 23 states were fully compliant with the REAL ID Act, while 27 states and territories had been granted extensions, and six states and territories — Illinois, Minnesota, Missouri, New Mexico, Washington, and American Samoa — were noncompliant and without extensions.
Here is the actual timeline that was provided by DHS that in January 2016 statement:
- Effective Immediately, the Department of Homeland Security will conduct outreach to educate the traveling public about the timeline below, and continue engagements with states to encourage compliance with REAL ID standards.
- Starting July 15, 2016, TSA, in coordination with airlines and airport stakeholders, will begin to issue web-based advisories and notifications to the traveling public.
- Starting December 15, 2016, TSA will expand outreach at its airport checkpoints through signage, handouts, and other methods.
- Starting January 22, 2018, passengers with a driver’s license issued by a state that is still not compliant with the REAL ID Act (and has not been granted an extension) will need to show an alternative form of acceptable identification for domestic air travel to board their flight. To check whether your state is compliant or has an extension, see here. Passengers with driver’s licenses issued by a state that is compliant with REAL ID (or a state that has been issued an extension) will still be able to use their driver’s licenses or identification cards.
- Starting October 1, 2020, every air traveler will need a REAL ID-compliant license, or another acceptable form of identification, for domestic air travel.
In January 2018, DHS sent notice to American Samoa that beginning “February 5, 2018, residents of American Samoa will no longer be able to use territory-issued driver’s licenses or identification cards to fly domestically, or enter federal buildings and military installations.” American Samoa had previously received an extension that was to expire in February 2018, but DHS determined that the territory had “subsequently not been able to demonstrate a clear achievable plan for compliance as needed to receive a new extension.” Today, as of September 2021, DHS lists American Samoa as “Under Review” without any additional explanation.
As of January 2018, DHS announced that a total of 55 of 56 states and territories were compliant or had received an extension until October 10, 2018. This is, of course, an odd framing of the situation, and one that DHS bureaucrats had carried over from the Obama administration. The public wants to know how many states are actually compliant, which is quite different than having received an extension.
DHS did send out notices and reminders in the months and years that followed:
- April 2019: “TSA Reminds Travelers of REAL ID Identification Requirements”;
- October 2019: “DHS Reminds Travelers that Deadline for REAL ID Compliance is One Year Away”;
- January 2020: “DHS Steps Up REAL ID Education and Awareness Efforts”; and
- February 2020: “DHS Announces Streamlining Measures To Help States In Issuing REAL IDs”.
Though the REAL ID Act was intended to be implemented on October 1, 2020, it was extended, yet again, for one year as a result of Covid-19, as explained by DHS Secretary Chad Wolf in early 2020: “States across the country are temporarily closing or restricting access to DMVs. This action will preclude millions of people from applying for and receiving their REAL ID.”
Nevertheless, on September 10, 2020, DHS announced “that after more than 15 years since Congress passed the REAL ID Act, all 50 states are now in full compliance issuing these cards, with most states becoming compliant in the last four years.” In October 2020, DHS sent out an announcement, “reminding Americans that only 12 months remain until the October 1, 2021 REAL ID enforcement goes into effect” and that “individuals seeking to enter federal facilities, nuclear power plants, or commercial airplanes at federally regulated airports will be required to have a REAL ID compliant license or acceptable alternative identification, such as a U.S. passport or passport card, to gain entry.”
As of December 2020, DHS announced that states and territories “have issued more than 114 million REAL ID-compliant driver’s licenses and identification cards, representing 42 percent of all driver’s licenses and identification card holders.”
It’s important to understand that although the states have raised their standards to meet the REAL ID Act’s requirements, not all U.S. residents actually have REAL ID compliant driver’s licenses. This means that millions of Americans without the compliant licenses will be unable to board airplanes on the date set by DHS, unless using some other form of identification like a U.S. passport. That date was to be October 1, 2021, but the Biden administration extended the deadline by 19 months to May 3, 2023.
If that date is not pushed forward, it will mean that that DHS will have taken almost exactly 18 years to implement the REAL ID Act from the day it was signed into law on May 11, 2005.
For more on REAL ID, see the “Frequently Asked Questions” webpage on DHS.gov and the REAL ID topic page on CIS.org.