Order Code RL34430

The REAL ID Act of 2005: Legal, Regulatory, and Implementation Issues

April 1, 2008

Todd B. Tatelman Legislative Attorney American Law Division The REAL ID Act of 2005: Legal, Regulatory, and Implementation Issues

Summary

In 2005, Congress addressed the issue of national standards for drivers’ licenses and personal identification cards by passing The REAL ID Act of 2005 (REAL ID). The act contains a number of provisions relating to improved security for drivers’ licenses and personal identification cards, as well as instructions for states that do not comply with its provisions. In general, while REAL ID does not directly impose federal standards with respect to states’ issuance of drivers’ licenses and personal identification cards, states nevertheless appear compelled to adopt such standards and modify any conflicting laws or regulations to continue to have such documents recognized by federal agencies for official purposes.

Both at the time that REAL ID was debated in Congress, and during the regulatory comment period, questions about the constitutionality of the statute have been raised. There have been four main constitutional arguments made against REAL ID. First, because REAL ID cannot be premised on Congress’s power to regulate interstate commerce, it is a violation of states’ rights as protected by the Tenth Amendment. Second, the requirement that REAL IDs be used to board federally regulated aircraft impermissibly encroaches on citizens’ right to travel. Third, specific requirements such as the digital photograph potentially violate the Free Exercise Clause of the First Amendment. Finally, REAL ID infringes upon a citizen’s right under the First Amendment to freely assemble, associate, and petition the government.

Since its adoption in 2005, REAL ID has been a highly contested issue among state legislatures and governors. According to some advocacy groups, state and federal elected officials — including numerous commentators to the proposed regulations — and other interested parties, REAL ID imposes an unconstitutional “unfunded mandate” on the states. Prior to the publication of the proposed rule in 2007, however, there was little activity at the state-lawmaking level, primarily because officials were uncertain as to precisely what the implementation requirements were going to necessitate, either in terms of cost or potential changes to state law. Since the publication of the proposed rule in 2007, there has been a dramatic increase in state responses to REAL ID and its requirements.

The final regulations were promulgated by the Department of Homeland Security (DHS) on January 29, 2008, and contain 280 pages of explanation as well as responses to over 21,000 comments. This report contains a summary description and analysis of several of the major elements of the REAL ID regulations.

Finally, this report will address REAL ID in relationship to other federal laws and identification programs. This report will be updated as events warrant. Contents

History and Background ...... 1 Statutory Provisions and Requirements of REAL ID ...... 3 Minimum Issuance Standards ...... 3 Evidence of Legal Status...... 4 Temporary Drivers’ Licenses and Identification Cards...... 4 Other Requirements...... 4 Trafficking in Authentication Features for Use in False Identification Documents...... 5 Additional Provisions ...... 5 Promulgation of Regulations...... 6 Constitutional Questions ...... 6 Tenth Amendment...... 6 Right to Travel...... 8 First Amendment Rights ...... 10 “Unfunded Mandate” Issues ...... 14 Time Line For State Implementation...... 16 State Legislative Responses and Potential Issues for Citizens of Non-Compliant States ...... 17 Selected Regulatory Requirements of REAL ID...... 20 Full Legal Name...... 20 Principal Residence...... 21 Document Verification Requirements...... 22 Machine-Readable Technology ...... 24 Document Storage...... 25 Physical Security of Motor Vehicle Facilities ...... 25 DMV Databases...... 26 Background Checks ...... 26 Additional Issues...... 28 National Identification Card...... 28 Issuance of Drivers’ Licenses and Personal Identification Cards to Non-Citizens and/or Undocumented Persons ...... 29 Relationship of REAL ID to Other Federal Laws and Programs...... 30 Western Hemisphere Travel Initiative (WHTI) ...... 30 Enhanced Driver’s Licenses (EDLs)...... 31 The REAL ID Act of 2005: Legal, Regulatory, and Implementation Issues

History and Background

Prior to the passage of the Intelligence Reform and Terrorism Prevention Act of 2004,1 standards with respect to drivers’ licenses and personal identification cards were determined on a state-by-state basis with no national standards in place. In fact, prior to September 11, 2001, legislation aimed at discouraging national standards for identification documents had gained bipartisan support and was thought likely to pass.

Congressional action regarding national standards for state-issued identification documents before September 11, 2001, had proved to be highly controversial. For example, § 656 of the Illegal Immigration Reform and Immigrant Responsibility Act of 19962 provided federal standards for state drivers’ licenses and birth certificates when used as identification-related documents for federal purposes. Under this provision, a state had two choices. The state could require that each of its licenses include the licensee’s in machine-readable or visually readable form. Alternatively, a state could more minimally require that each applicant submit the applicant’s Social Security number and verify the legitimacy of that number with the Social Security Administration. The section became subject to widespread public criticism shortly after its enactment with opponents most frequently alleging that it could be construed as a step toward a national identification card system. In response, Congress prohibited funding to implement regulations aimed at assisting the states to adopt the Social Security number requirements, and the underlying requirement itself was subsequently repealed in § 355 of the Department of Transportation and Related Agencies Appropriations Act 2000.3

After the events of September 11, 2001, the prevailing view of national standards for so-called “breeder documents,” which includes, but is not limited to, drivers’ licenses and personal identification cards, changed. Specifically, the final report of The National Commission on Terrorist Attacks Upon the United States (9/11 Commission) recommended that “the federal government should set standards for the issuance of birth certificates, and sources of identification, such as drivers’

1 Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458 §§ 7211-7214, 118 Stat. 3638 (2004) [hereinafter IRTPA]. 2 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208 § 656, Division C, 118 Stat. 3638 (1996). 3 Department of Transportation and Related Agencies Appropriations Act, 2000, P.L. 106-69 § 355, 113 Stat. 986 (2000). CRS-2 licenses.”4 Responding to this recommendation, in 2004 Congress enacted The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). This act delegated authority to the Secretary of Transportation, in consultation with the Secretary of Homeland Security, empowering them to issue regulations with respect to minimum standards for federal acceptance of drivers’ licenses and personal identification cards.5

Pursuant to the IRTPA, the Secretary was required to issue regulations within 18 months of enactment requiring that each driver’s license or identification card, to be accepted for any official purpose by a federal agency, include the individual’s (1) full legal name, (2) date of birth, (3) gender, (4) driver’s license or identification card number, (5) digital photograph, (6) address, and (7) signature.6 In addition, the cards were required to contain physical se