Over the last several months, the federal government has ratcheted up pressure on states to comply with REAL ID. But despite federal bullying, states should continue to resist this intrusive national ID program for three important reasons.
Despite efforts to make it palatable, REAL ID is a real threat to privacy, the feds won’t likely follow through on their threats, and most significantly, it is constitutionally unwarranted.
Typically, opponents of REAL ID forecast doomsday scenarios that are to befall states that align against the law’s implementation. Most arguments seem to revolve around the idea that the federal government with initiate a crackdown if states refuse to comply, and double-down on enforcement if states are unprepared to implement the mandate. Others suggest that a voluntary-opt out should placate all hostility toward the act, and prevent the possibility of privacy violations and centralized overreach. Both of these claims, I think, are without merit.
Firstly, the promise of an opt-out provides only a hollow assurance to citizens. Rather than alleviate apprehensions toward the bill, such a stipulation only creates a new layer of bureaucracy for citizens to work through in order to preserve and protect their privacy. Under current political realities, there is also nothing to suggest that future administrations won’t ignore current opt-out promises, and the feds are likely to impose their data-sharing system regardless of any opt-out.
Additionally, repeated federal threats to restrict the free travel of citizens as retribution for state resistance against REAL ID have proven historically impotent. Under the original law, all states were expected to be in compliance by 2009. As the federal government found out, implementation wasn’t as easy as expected. Instead of holding states to this date, they issued waivers and extensions to many states. A whole 21 states had extension waivers until October, 2016. At that point, the Department of Homeland Security insisted that they wouldn’t issue any more extensions after January 30, 2017. Just eight days into the year, Secretary Jeh Johnson issued a full backtrack via press release.
While breaching a series of deadlines, many states have successfully resisted REAL ID implementation through overt legislation that restricts the law’s enforcement. It remains clear that the feds do not dare bring such an intimidation campaign to fruition. Actual enforcement of the law would require federal employees to continually meddle with the daily affairs of everyday citizens, creating unnecessary resentment. Recent history has overwhelming demonstrated that the threat of a federal intimidation campaign against the states has amounted to nothing more than a hot bag of air.
Instead of yielding to the law, dozens of states have successfully met the REAL ID with head-on resistance. Oregon passed a fantastic bill that prohibited the state from “expending funds to comply with” the act. In a true act of defiance, Missouri adopted an act that forbade its state departments from complying with the directive. South Carolina instituted an equally powerful act that prohibited its Department of Motor Vehicles from complying with the law’s requirements. Even if states do not want to adopt similar legislation, it simply does not have to comply with the mandate. By all accounts, a state’s candid refusal would not even be considered as a uniquely incendiary act.
In addition to the plethora of negative ramifications, the law itself fails to withstand constitutional scrutiny. Under the Constitution, there exists no enumerated power to force the states to adopt national identification guidelines. Despite this, some legal scholars have still attempted to justify the imposition of REAL ID through flimsy legal theories and the fallacious notion of the Constitution as a “living document.” Contradicting their claims is the ratification campaign, where the proponents of the Constitution made extremely clear that the federal government would only have the powers that were specifically delegated to it by the states. In Virginia, Edmund Randolph claimed that the general government would endeavor to violate the constitution for exercising any power “not expressly delegated therein.”
Maintaining the same position, Charles Cotesworth Pinckney of South Carolina opined that Congress had no right to “exercise powers not expressly delegated to it.” Lending his hand to the cause of ratification in New York, in The Federalist #45 James Madison swore that the powers delegated to the general government were “few and defined.” At the Hillsborough convention in North Carolina, James Iredell declared that the “powers of the government are particularly enumerated and defined: they can claim no others but such as are so enumerated.” These testimonials were hardly immaterial. They allayed the apprehensions of skeptics in some of the most polarized states and played an enormous role in securing ratification of the Constitution.
Beyond the constitutional impermissibility of REAL ID, advocates of the model insisted that the states did not have to comply with federal regulatory programs. In The Federalist #46, Madison declared that under “a refusal to co-operate with officers of the Union” would thwart “serious impediments” to state authority over its own internal affairs. Such a strategy, he wrote, would “present obstructions which the federal government would hardly be willing to encounter.” Speaking in North Carolina’s ratification convention, Archibald McClain asserted that attempts to impose an unpopular regulatory scheme would be met with open hostility. “We will disregard it,” he stated, “and punish you for the attempt.” The same is true in Connecticut, where Oliver Ellsworth maintained that states could interpose to reject federal mandates. “If the United States and the individual states will quarrel” over unpopular law, said Oliver Ellsworth, “no frame of government can possibly prevent” the resistance of the states.
Even the federal courts, which are overwhelmingly inclined to rubber-stamp federal policies, have continually admitted that states do not have to participate in federal regulatory programs. I would urge legislators to become familiar with the anti-commandeering doctrine and its foundational case Printz v. The United States (1997), which plainly asserts that states are not obliged to assist in the enforcement of any federal regulatory programs. Before that, a series of cases that stretch as far back as Prigg v. Pennsylvania (1842) all make a persuasive legal case for the legitimacy of state noncompliance. The anti-commandeering doctrine is a mantra that is bolstered by original intent.
It is imperative that all states remain ever vigilant in its refusal to adopt REAL ID. Doing so would maintain the state’s reserved authority under the precepts of federalism, which Thomas Jefferson called the “foundation” of the federal Constitution. To step beyond the bounds “specially drawn around the powers of Congress,” he wrote, “is to take possession of a boundless field of power, no longer susceptible of any definition.”
Reserving control over identification cards and the identification data in state databases is part of a state’s inherent authority. Despite the empty promise of an opt-out, the absurdity that the federal government will actually stop passengers from flying on commercial airlines, and the mythical view that the law is somehow constitutional, no such retribution will come to states that remain resilient.
 Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution (5 Vols., Washington: Taylor & Maury, 1861), III: 522.  The Debates in the Several State Conventions on the Adoption of the Federal Constitution, IV: 315-316.  The Federalist #45, Alexander Hamilton, James Madison, and John Jay, The Federalist, ed. Jacob E. Cooke (Middletown: Wesleyan University, 1961), 313.  The Debates in the Several State Conventions on the Adoption of the Federal Constitution, IV: 202.  The Federalist #46, The Federalist, 319-320.  The Debates in the Several State Conventions on the Adoption of the Federal Constitution, IV: 161-162.  The Debates in the Several State Conventions on the Adoption of the Federal Constitution, II: 198.  Opinion on the Constitutionality of a National Bank, in Thomas Jefferson: Writings (New York: Viking Press, 1984), 416.