States fight as REAL ID deadline nears

Montana and New Hampshire are two states revolting against unfunded federal mandates.

Mark Thomson
Check-in: Ticket agents assist customers at Logan Airport in Boston. DHS has threatened that residents of states not in compliance with the REAL ID law may not be able to use driver’s licenses as identification at airports.

Frustrated by unfunded federal mandates, a number of states are revolting.

The latest case in point: stiff resistance to REAL ID, a controversial post-9/11 law that aims to make driver's licenses more secure.

The Department of Homeland Security set Monday as the deadline for states to get an extension for implementing REAL ID. Miss this deadline, DHS warned resistant states, and come May, your residents won't be allowed to board planes with their current driver's licenses.

Montana is one state that's been opposed to the DHS requirements. Rather than request an extension, it sent DHS a letter explaining what it's already doing to strengthen licenses. Still, DHS responded on March 21 by granting an extension. New Hampshire, another REAL ID holdout, took a similar path with DHS and also got an unasked-for extension last week.

Beyond REAL ID, a series of federal moves in recent years have stepped on states' toes, including the No Child Left Behind Act and federal tort reforms, says David Davenport, professor of public policy at Pepperdine University in California. "The pendulum is swinging a little bit back towards states' rights now, and that's one context in which to see this REAL ID battle," he says.

It's been a long time since states have expressed the levels of exasperation seen with REAL ID and No Child Left Behind, adds Carl Tubbesing, deputy executive director of the National Conference of State Legislatures (NCSL), which has objected to REAL ID.

"No Child Left Behind and REAL ID are double whammies in that they contain preemption of state authority and huge unfunded mandates," says Mr. Tubbesing. Although these federal mandates are relatively recent, some states' frustrations have been "building for a couple of decades," he notes.

Congress passed the REAL ID law in 2005. It addresses concerns raised by the 9/11 commission about the ability of terrorists to obtain identification, says DHS spokeswoman Amy Kudwa.

The law requires that states make it harder to tamper with driver's licenses, and it makes state motor-vehicle agencies more secure. It also tightens standards for how people may use documents to establish their identity.

Many states balked at the measures. Seventeen, including Montana, passed legislation opposing REAL ID. With no states near compliance, most opted to request an extension, but Montana, New Hampshire, Maine, and South Carolina refused to do even that.

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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