Secretary Napolitano Now in Quandary as REAL ID Deadlines Loom

By Janice Kephart on November 24, 2009

As the January 1, 2010, deadline approaches for REAL ID compliance -- a deadline that could leave airline passengers all over the country delayed in TSA lines for failure to have a federally certified secure driver license -- DHS Secretary Napolitano faces a quandary: enforce the law she is trying to repeal, or risk turning a law for which she is responsible for implementing into a joke. If Napolitano enforces the law, she will be going against all the anti-REAL ID enforcement commentary she has been repeating in press statements and to Congress since her confirmation hearings and even prior to taking office. If the Secretary fails to enforce the law, she will have shown how terribly ineffectual she has been as secretary -- gambling on a draft repeal bill that remains quietly buried (at least so far), despite making it one of her top priorities and considered a fait accompli when she took office earlier this year.

Yet despite the fact that DHS, the Secretary herself, and her adjunct lobbyists (the National Governors Association) have spent an inordinate amount of time lobbying the Senate leadership for passage of the repeal bill, PASS ID, it hasn't made much progress. PASS ID was passed out of the Senate committee of jurisdiction but lacks a champion. In fact, the marked-up bill requires so many revisions that it is now struggling to get noticed in the last weeks of this session of Congress under the heavy weight of health care reform. This doesn't mean the bill is dead. Not yet anyway. But it does raise questions as to how this bill has come this far only to be a potential train wreck of compliance for the states it was touted to help. Why?

First, PASS ID was poorly drafted, lacked credibility, and failed to garner the necessary congressional support it needed to be championed well. The Senate bill has no companion in the House of Representatives. True, the bill has the ability to continue to improve, but a draft that does so has yet to be circulated among the relevant stakeholders, despite this legislative session soon drawing to a close.

Second, the momentum for PASS ID was lost in the early summer and once that happened, larger policy issues have loomed as more important. These include:

* Appearing lax on security is not really a good idea after a string of terror plot arrests by the FBI over the past few months, and one that came to fruition leaving 13 dead and many others wounded at the Fort Hood Army base.

* With such a poor economy, the idea of not securing driver's license issuance, which is a significant source of fraudulent applications and identity theft, seems foolish. REAL ID has shown itself to be extremely helpful in reducing fraud where it is being implemented; these success stories grind down the opposition for good reason.

* There is the possibility of amnesty next year, and with it the concern that states will be required under a new driver's license law to issue licenses to those previously illegal, an imposition on states' rights perhaps more difficult to deal with politically than the concerns initially raised about REAL ID.

Third, REAL ID grant monies are sitting barely used in many states. The fact that REAL ID monies are not being used at a rapid pace takes the wind out of the argument of the National Governors Association and many governors that unless more money comes, the only choice would be to balk at the law.

Which brings us back to January 1, 2010, by which point all states are required to have fulfilled the first 18 benchmarks of REAL ID compliance in order for the bearers of their licenses to be able to board planes and enter critical infrastructures without secondary inspection. The secretary now does not have much time to act. The fact is she cannot afford not to act.

This means the likely outcome will be a compromise between full-fledged enforcement and abrogation of the law entirely: the deadline remains, but what the deadline means changes.

In other words, perhaps the best — if by far less than perfect outcome — is that instead of states being required to certify they have materially complied with all 18 components of the first tier of REAL ID compliance by December 31, 2009, they would instead be required to submit a plan stating how they are planning to comply with that first tier. This decision would encourage states that have yet to meet the December 1, 2009, deadline (extended by the Secretary from October 1) to file an extension request by that date. Filing by December 1, 2009 — just a few days away — will enable states to gain 17 months to achieve compliance; instead of having to comply by January, they would have a new deadline of May 2011. An extension letter would be a better outcome, it would seem, for states on the fence or unable to comply with REAL ID at this point, than a Mitigation Plan.

Let's see how the Secretary resolves this quandary. She has a choice; let's hope she does the right thing and doesn't kick REAL ID in the shins one more time. So far, REAL ID may be bruised, but it isn't dead. Not yet.