Flying? Driver’s license may soon be insufficient ID

Travelers accustomed to presenting their driver’s licenses as identification at U.S. airports may be surprised to learn that plain, old driver’s licenses may not be sufficient for that purpose much longer.

The reason is a law called the REAL ID Act of 2005, a portion of Public Law 109–13, an emergency supplemental appropriation for “defense, the global war on terror, and tsunami relief.” While the first section, Title I, amends certain federal laws to enhance protection against terrorist entry and tightens various immigration issues related to terrorism, Title II sets requirements for driver’s licenses and state identification cards that will be used for official federal purposes including, among other things, “boarding federally regulated commercial aircraft.”

The Real ID Act started off as a House Resolution, H.R. 418, that was authored by Rep. James Sensenbrenner (R-Wisc.). That bill passed the House but when it stalled, Sensenbrenner then attached it as a rider on H.R. 1268, the military spending bill that eventually became P.L. 109-13.

The REAL ID Act mandates that states and U.S. territories must require proof of U.S. citizenship or proof that a person has been “lawfully admitted for permanent or temporary residence in the United States” before issuing a driver’s license or state ID card for those documents to be acceptable for official federal purposes. While the minimum standards for federal use of an ID were supposed to take effect three years after the bill was passed, or May 2008, there have been delays enacting portions of the law and extensions granted to some states that are non-compliant.

Feds beginning to clamp down?

According to an Associated Press (AP) report published in The Seattle Times on Oct. 29, the Department of Homeland Security (DHS) has denied the most recent requests for extensions from the states of Washington and New Mexico, states that had been granted extensions previously. That report also says those are the only two states that do not require proof of legal presence in the U.S. to obtain standard driver’s licenses, something the Washington state legislature failed to address in the session that ended in July.

As of the date of this post, the DHS web page on REAL ID enforcement reports that the state of Minnesota and the territory of American Samoa also fail to comply with the REAL ID Act but neither of those jurisdictions has requested an extension of time to become compliant.

Of the other 52 states and territories, 39 are listed as compliant and 13 have extensions requested or granted. New Hampshire has an extension allowing Federal agencies to accept their driver’s licenses until June 1, 2016 while the states of Arizona, Arkansas, Idaho, Kentucky, Louisiana, Michigan, New York, Oklahoma, Oregon, Rhode Island, Texas and Virginia have extensions allowing Federal agencies to accept their driver’s licenses until Oct. 10, 2016.

The DHS website notes that “the date for implementing the prohibition on boarding aircraft travel will be set after an evaluation of earlier phases and will not occur sooner than 2016” and DHS has said it will announce a specific date on the travel requirements portion of the law by the end of 2015. However, with a number of states already granted extensions into October, an implementation date before that seems unlikely.

One Congressional observer, the Washington, D.C.-based publication The Hill, published an Oct. 25 editorial that pointed out “[D]eadlines have come and gone several times, with the DHS, motor vehicle bureaucrats, and national ID proponents touting the threat that TSA would bar law-abiding Americans from exercising their right to travel if they didn’t have a national ID.”

The specter of ‘Big Brother’

Some parties, including the Cato Institute senior fellow who penned the editorial above, equate the implementation of common federal standards to the creation of a “national ID card.” Historically, Americans have balked at the concept of a national ID card despite the fact that, to date in 2015, more than 125,900,000 Americans – more than a third of all citizens -- hold a valid U.S. passport, which could fairly be described as an “international ID.”

Many privacy advocates are also opposed to the REAL ID Act, which requires states to “[P]rovide electronic access to all other States to information contained in the motor vehicle database of the State” [Sec. 202 (d)(12)] and that the database shall include “[A]ll data fields printed on drivers' licenses and identification cards issued by the State; and motor vehicle drivers' histories, including motor vehicle violations, suspensions, and points on licenses.” [Sec. 202 (d)(13)(A) and (B)].

Others have pointed out that the federal government has spent $250 million on the REAL ID Act since its passage and has achieved no meaningful results for those expenditures, let alone the enhanced security it was supposed to provide.

Should the federal government ever actually set a deadline after which they will stop accepting driver’s licenses that are not compliant with the REAL ID Act, there are other documents that will allow passengers to fly. Valid U.S. passport books, passport cards and Permanent Residency Cards will be accepted, as will “enhanced driver licenses” such as those issued by the states of Michigan, Minnesota, New York, Vermont and Washington. Part of the Western Hemisphere Travel Initiative (WHTI) and more expensive than a standard driver’s license, enhanced driver’s licenses require proof of citizenship in order to be issued.

While it has not heretofore been required in the United States, requiring proof of citizenship for air travel is not without precedent elsewhere. During our September trip to Canada, all passengers boarding flights from Toronto to Montréal, and from Montréal to Vancouver had to show passports or other proof of citizenship, even though the flights were domestic flights entirely within the borders of Canada.

Nonetheless, if you are opposed to the concept of a national ID card, government procrastination, fiscal irresponsibility, or simply tilting at windmills, now would be an opportune time to email, call or write your U.S. Senators and Representatives and urge them to repeal the REAL ID Act before it is actually implemented. Otherwise, be sure to keep your passport or other acceptable ID current if you intend to fly the increasingly unfriendly skies.

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