States' Rebellion at Real ID Echoes in Congress

U.S. Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, meets with Allen Gilbert, executive director of the American Civil Liberties Union of Vermont, before the start of a May 8 hearing about the REAL ID Act. Leahy is throwing his weight behind a proposed repeal of the federal law's strict new security rules for driver's licenses.

Two states leading a revolt against the Real ID Act have picked up new firepower in the U.S. Senate in their fight to roll back an unprecedented federal overhaul of state driver's licenses.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) is now spearheading an effort in Congress to undo the 2005 law that will require states to verify the identity of all 245 million licensed drivers and impose a common set of security features on license cards. Leahy, who can use his post to push legislation to the Democratic-controlled Senate, has signed on to a bill to repeal the Real ID law and revive a previous state-federal partnership effort to make driver's licenses more secure. A bill in the U.S. House, also now in Democratic hands since the 2006 election, has attracted the support of 25 co-sponsors.

"While the federal government dictates responsibilities for what has traditionally been a state function - and adding layers of bureaucracy and regulation to effectively create a national identification card - there is no help in footing these hefty bills," Leahy said at a May 8 Judiciary Committee hearing.  

Driving the momentum in Congress, Montana and Washington state last month passed nearly unheard-of statutes rejecting the federal law, which they charge will infringe on their residents' privacy and saddle states with a $14 billion unfunded mandate. More than 30 other states have taken up similar bills or resolutions calling on Congress to repeal Real ID or fully fund it.

Pietro Nivola, a scholar on federalism with the Brookings Institution, said states have wrestled with mandates from Washington, D.C., since President John Adams' tenure but rarely have passed laws defying Capitol Hill. In 1798, legislatures in Kentucky and Virginia passed resolutions declaring a right to nullify federal statutes - a protest against laws cracking down on immigrants as the country prepared for war against France. One of those laws was repealed 1802 after a new majority party took over in Congress, but the other three were allowed to expire.

Instead, states often have used the courts to test the bounds of Congress' reach. For example, the U.S. Supreme Court granted states immunity from lawsuits by their employees under the 1990 Americans with Disabilities Act. In extreme cases, such as the U.S. Supreme Court's 1954 order to desegregate schools, many Southern states simply ignored the mandates until forced to comply by federal troops or the U.S. Justice Department.

More commonly, as with a federal law stiffening drunken-driving enforcement, states have dragged their feet until the threat of losing federal funds made them toe the line. Delaware, for example, waited nearly a decade to adopt Congress' 1996 mandate setting a .08 percent blood-alcohol content, but acted in time to save $3.3 million in transportation funding.

Money also has been the carrot keeping states from outright rejecting President Bush's No Child Left Behind education law, which state lawmakers across the political spectrum also have challenged as an unfunded mandate and an intrusion on traditional state control of schools.

Nearly half of the states and several local school districts, most recently in Virginia, have threatened to abandon the law, which requires annual testing in reading, math and science and penalizes schools that miss progress goals. But no jurisdiction has flatly repudiated the act because they would have to forfeit federal money, which accounts for about 8 percent of public education funding. A Connecticut lawsuit that sought to overturn the law failed in September 2006.

Like the No Child Left Behind Act, Real ID has sparked outrage from liberals and conservatives alike. They condemn the law's costs, federal pre-emption of state practices and potential threat to personal privacy.

The difference with Real ID is that Montana and Washington won't forfeit a dime in federal money by rejecting the act, which Congress attached without debate to a 2005 bill funding the war in Iraq and Asian tsunami aid. Passage of the law halted negotiations between the states and the federal Department of Transportation on new driver's license security standards to fulfill recommendations of a task force studying the terrorist attacks of Sept. 11, 2001. Both the U.S. Senate and U.S House bills would revive that process.

The penalty if states do not conform to the act is that their citizens will not be able to use their driver's licenses for federal identification purposes, such as boarding an airplane or entering a federal building.

Richard Barth, an assistant secretary at the federal Department of Homeland Security , told state legislators at an April meeting that Real ID was designed to be voluntary and not tied to federal funds because that could make it unconstitutional.

Under Real ID, states will have until 2013 to reissue all driver's licenses, beginning next May or at the end of 2009 if a state asks to extend the deadline. License holders will have to renew their licenses in person and show a form of photo identification and documents proving their date of birth, Social Security number and address.

The National Conference of State Legislatures is asking the homeland security department to allow states 10 years after Real ID rules are finalized to reissue existing licenses and to decrease costs by exempting military personnel and others with federal identification from the rigid screening process.

The federal homeland security department has estimated that Real ID will cost states $14 billion. Although Congress has appropriated $40 million to meet the law's requirements, homeland security officials have clarified that amount will be given out as grants to develop best practices. States also would be allowed to use 20 percent of their federal homeland security grants, but state officials point out those funds are already dedicated.

Final rules for Real ID are due later this summer.