REAL ID Compliance and the Effect of Deferred Action

By Janice Kephart on January 15, 2013

Facing a final compliance deadline of today, January 15, 2013, the Department of Homeland Security (DHS) last month issued a press release providing a six-month grace period for states to become fully compliant with the federal driver's license law known as the REAL ID Act of 2005. DHS states that enforcement would then begin at the earliest in the autumn of 2013. Despite the deferral, the department's statement of support for the REAL ID Act and its importance to national security is a significant step forward; the Obama administration had previously sought the law's repeal and then remained silent on its implementation for the past three years, until tepid announcements of support last year.

The act was passed in 2005 based on 9/11 Commission findings that 18 of 19 of the 9/11 hijackers had acquired a total of 28 driver's licenses and state-issued IDs in five states, and called on the federal government to "set standards for the issuance of sources of identification, such as driver's licenses."

The act establishes minimum security standards for license issuance and production and prohibits federal agencies from accepting for official purposes those documents issued by a state unless DHS determines that the state meets the minimum standards. DHS has now stated that 13 states have met the act's standards for driver's licenses and identification cards and has granted a temporary deferment for all other states and territories, encouraging noncompliant states to conduct the necessary work to fully implement REAL ID. That means that until the autumn of 2013, those seeking to board aircraft or use IDs for other official means may continue to do so with current valid state-issued IDs.

REAL ID Compliance

Currently, DHS has determined that Colorado, Connecticut, Delaware, Georgia, Iowa, Indiana, Maryland, Ohio, South Dakota, Tennessee, West Virginia, Wisconsin, and Wyoming have met the act's requirements. According to my "REAL ID Implementation Annual Report" of February 2012 (DHS has not issued such a report in recent years), Alabama and Florida should be close to act certification as well.

According to that report, the grace period granted by DHS and leadership now exerted on the issue may result in an upswing of compliance that the administration now seems to seek, especially considering how far many states had moved towards compliance even as of a year ago. An excerpt noted the following regarding substantial REAL ID compliance with 39 benchmarks:

Overall the report finds that there is substantial compliance sought across the board by all states and territories (56 jurisdictions in all), even if there remains a wide gap between the strongest of state systems and the weakest. (References below to "states" may include the 50 states, the District of Columbia, or the five island territories.) This assessment found that almost every jurisdiction is continuing to improve its credentialing, even if some state statutes prevent actual REAL ID compliance. Even jurisdictions where there are too few improvements are not stagnant, but are working to improve aspects of issuance either with technology vendors or the American Association of Motor Vehicle Administrators (AAMVA), the entity that is responsible for promulgating many driver's license standards as well as providing much of the network support for information-sharing that state motor vehicle agencies use.

This assessment concludes that states (1) see tremendous value in pursuing REAL ID standards in reducing fraud, increasing efficiencies, improving customer service, and supporting law enforcement; (2) are willing to pay for those improvements with their own budgets outside of federal grant monies; and (3) are often exceeding REAL ID minimum standards in order to achieve more complete credentialing security. This study finds that:

  • 53 states and territories are embracing REAL ID or the technical tenets of REAL ID.
  • Five states have submitted REAL ID compliance packages to the Department of Homeland Security and 36 are materially or substantially materially compliant now or likely will be by the REAL ID compliance deadline of January 15, 2013.
  • Of the 36, nine states are or will be issuing "gold star" licenses which are specially branded for acceptance for security screening at commercial airports and entering certain federal facilities. Another 27 have met or will meet the first 18 "material compliance" benchmarks that have been used for years as a measure of compliance. This includes the four states issuing enhanced driver's licenses that meet REAL ID material compliance tenets produced for the State Department for border crossing, with Minnesota to be the fifth to begin production.
  • Seven states have made improvements, but are not likely to meet material compliance.
    Among all 56 states and territories:
  • At least 43 are issuing tamper-resistant cards;
  • 51 are checking SSNs and the remaining five are currently getting online;
  • 47 are registered with DHS to check legal presence through the SAVE database, two are coming online, and seven are not (two have statutes preventing this check);
  • Nearly all vital record agencies have digitized their vital events records (for births and deaths) to some degree, while 37 states have installed the EVVE vital events network that enables interstate queries; another 11 are in the process of installing EVVE or a similar program; but only five motor vehicle agencies intend to check vital records prior to issuing a driver's license;
  • 32 are issuing their cards from secure or central locations and another five are now switching to central issuance;
  • 38 have installed facial recognition software to help reduce fraud and support law enforcement and another six are implementing it now; this technology is expensive and not required by REAL ID but helps states achieve the "one driver/one license" rule of REAL ID.
  • Only three jurisdictions are not significantly improving their license issuance, and two of those are territories.
  • These improvements and work toward compliance have occurred despite at least 16 state statutes impeding full compliance with the REAL ID Act.

The new surge in DHS leadership is welcome. Last year, states had found their way to implement REAL ID standards using some federal funds, but primarily their own budget resources. Why did states do so? REAL ID provided tremendous efficiencies, customer service improvements, anti-fraud, and law enforcement-supportive results that REAL ID minimum standards created. States pursued compliance despite a national anti-REAL ID campaign by the ACLU and the Cato Institute, despite DHS Secretary Janet Napolitano's failed attempt to repeal REAL ID, and despite legislation in 13 states that hinders full REAL ID compliance.

How Deferred Action Amnesty Affects REAL ID

Only two states, Washington and New Mexico, do not require proof of legal presence in applying for a driver's license. The rest have implemented the use of a key REAL ID requirement – the use of the U.S. Citizenship and Immigration Service database, Systematic Alien Verification System (SAVE), to verify legal immigration status. With deferred action now in place, states now must decide what to do. While the deferred action program grants to illegal aliens a form acceptable to show legal presence under the REAL ID Act, the act first and foremost requires that foreign-born residents of states be verified as legally present through the SAVE database. The SAVE database, in turn, the Obama administration has made clear, will not be populated with the persons from the deferred action program.

The result is that SAVE will not verify those granted amnesty through DACA, but the paperwork is at least partially acceptable. The result is confusion on the part of many states, and various responses, some saying they will grant licenses to those granted deferred action, such as California and Indiana, others refusing, such as Michigan and Arizona.

The White House has punted on the issue, claiming it is up to states to decide. According to the Washington Times, "'Those are state questions,'" said an official whom the administration made available to brief reporters on the condition that he not be named. 'I'd have to point you to agencies that are responsible for issues like those.'"

The bottom line: REAL ID scrambled against heavy political odds for years to infuse a standardization that betters assures national security in state-issuance of IDs, and has been nearly successful. Getting states to recognize the value of checking legal status was a long haul that was justified by direct experience by the states. For example, Maryland's governor, originally staunchly against REAL ID, called an emergency session two years ago to gain consensus on compliance after that state suffered a surge in illegal-alien driver's license applications from all over the country, with the attending stresses on public safety, health, and education costs as illegal aliens flocked to the state to attain a driver license. At this point, deferred action has prompted a hodge-podge response as states try to decipher what should be done.

The irony, however, is that the act does not prohibit states from issuing driver's licenses to illegal aliens. It only requires that if an individual wants a REAL ID-compliant license that can be used for federal purposes (such as boarding airplanes), that individual must have legal presence under the law. Thus, states may issue driver's licenses to illegal aliens granted amnesty, but they must mark that license as not REAL ID-compliant. This exception already exists in current law. If the administration wanted to clarify that point, states would still have a difficult choice, since the issuance of valid driver's licenses to illegal aliens can cause other problems, but at least they would be in compliance with the law.