States fight as REAL ID deadline nears

Montana's rancher-turned-governor, Brian Schweitzer (D), dug his heels in on national radio this month. "This is the federal government telling a state you must do something, and you must pay for it. Well, thanks for playing; Montana is not in," Governor Schweitzer told NPR. When asked whether his residents will be able to board planes, he taunted DHS. "This is another bluff by some bureaucrats in D.C."

DHS moderated the rules for REAL ID compliance earlier this year, loosening some proscriptions and allowing for a longer phase-in. NCSL and some states still express reservations about the cost, which DHS says will amount to $3.9 billion. The agency argues it is helping to defray those costs, offering $380 million in grants this year alone.

The concessions weren't enough to allay all concerns, however. California threw its considerable weight behind the holdout states this month with a letter to DHS saying that its request for an extension shouldn't be construed as an agreement to ultimately implement REAL ID.

The California correspondence got forwarded to Montana officials by way of Bill Scannell, an anti-REAL ID activist.

"Schweitzer has been playing a very high-stakes game of poker with [DHS Secretary Michael] Chertoff for six months now. The letter came at just the right moment for him to lay his cards down on the table, and Chertoff folded," he says.

That it was a Democratic governor to go "all in" over federalism marks a major change, he says.

It's important to note, however, that Schweitzer hails from fiercely independent Montana, and that the party in the White House has a tendency to trigger states' rights claims from opposing governors, says Barry Weingast, a senior fellow at the Hoover Institution in California.

Historically, Congress has tried to head off federalism fights. "Usually what happens in those cases is that the acts get amended rather than letting the states get deeply involved in a confrontation with the federal government," says Dr. Weingast.

Congress appears to be waiting to see the outcome of the presidential election, says California state Rep. Pedro Nava (D), who has proposed a resolution urging his state's congressional delegation to repeal the law. DHS is also delaying for similar reasons, says Weingast.

The extensions give states until the end of 2009 to implement portions of REAL ID. At press time, DHS had given all states except Maine and South Carolina more time. In letters to Montana and New Hampshire, the Department explained that it was granting an unrequested extension because the states had taken steps toward adopting stricter license security standards.

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