The REAL ID Act of 2005: Legal, Regulatory, and Implementation Issues
The REAL ID Act of 2005: Legal, Regulatory, and
April 1, 2008
Todd B. Tatelman
American Law Division
The REAL ID Act of 2005: Legal, Regulatory, and
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
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.
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
Trafficking in Authentication Features for Use in False
Promulgation of Regulations.................................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
Selected Regulatory Requirements of REAL ID.....................20
Full Legal Name..........................................20
Document Verification Requirements.........................22
Physical Security of Motor Vehicle Facilities...................25
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 Act1
of 2004, 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
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 Social Security number 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,
2 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208 §
3 Department of Transportation and Related Agencies Appropriations Act, 2000, P.L.
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
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 security features designed to prevent tampering,
counterfeiting, or duplication for fraudulent purposes; as well as a common
machine-readable technology with defined minimum elements.7 Moreover, states
were required, pursuant to implementing regulations, to confiscate a driver’s license
or personal identification card if any of the above security components were
The statute also required that the implementing regulations address how drivers’
licenses and identification cards were issued by the states. Specifically, the
regulations were required to include minimum standards for the documentation
required by the applicant, the procedures utilized for verifying the documents used,
and the standards for processing the applications.9 The regulations were, however,
prohibited from not only infringing upon the “State’s power to set criteria concerning
what categories of individuals are eligible to obtain a driver’s license or personal
identification card from that State,”10 but also from requiring a state to take an action
that “conflicts with or otherwise interferes with the full enforcement of state criteria
concerning the categories of individuals that were eligible to obtain a driver’s license
or personal identification card.”11 In other words, it appeared that if a state granted
a certain category of individuals (i.e., aliens, legal or illegal) permission to obtain a
license, nothing in the implementing regulations was to infringe upon that state’s
decision or its ability to enforce that decision. In addition, the regulations were not
4 THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON
TERRORIST ATTACKS ON THE UNITED STATES, 390 (2004).
5 See IRTPA, supra note 1 at § 7212.
6 Id. at § 7212(b)(2)(D)(i)-(vii).
7 Id. at § 7212(b)(2)(E)-(F).
8 Id. at § 7212(b)(2)(G).
9 Id. at § 7212(b)(2)(A)-(C).
10 Id. at § 7212(b)(3)(B).
11 Id. at § 7212(b)(3)(C).
to require a single uniform design, and were required to include procedures designed
to protect the privacy rights of individual applicants.12
Finally, the law required the use of negotiated rulemaking pursuant to the
Administrative Procedure Act.13 This process was designed to bring together agency
representatives and concerned interest groups to negotiate the text of a proposed rule.
The rulemaking committee was required to include representatives from (1) state and
local offices that issue drivers’ licenses and/or personal identification cards, (2) state
elected officials, (3) Department of Homeland Security, and (4) interested parties.14
In 2005, Congress again addressed the issue of national standards for drivers’
licenses and personal identification cards by passing The REAL ID Act of 2005
(REAL ID).15 REAL ID 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 addition, REAL ID repealed
certain overlapping and potentially conflicting provisions of the IRTPA.
Statutory Provisions and Requirements of REAL ID
In general, although REAL ID does not directly impose federal standards with
respect to states’ issuance of drivers’ licenses and personal identification cards, states
nevertheless appear to need to adopt such standards and modify any conflicting laws
or regulations to continue to have such documents recognized by federal agencies for
REAL ID contains a statutory definition of the phrase “official purpose.” For
purposes of the act, an “official purpose” is defined as including, but not limited to,
“accessing Federal facilities, boarding federally regulated commercial aircraft,
entering nuclear power plants, and any other purposes that the Secretary [of
Homeland Security] shall determine.” In addition, REAL ID contains a provision
that specifically repealed § 7212 of the IRTPA, which had contained the preexisting
law with respect to national standards for drivers’ licenses and personal identification
Minimum Issuance Standards. Section 202(c) of REAL ID establishes
minimum issuance standards for federal recognition requiring that before a state can
issue a driver’s license or photo identification card, a state will have to verify with
the issuing agency, the issuance, validity, and completeness of (1) a photo
identification document or a non-photo document containing both the individual’s
full legal name and date of birth, (2) date of birth, (3) proof of a Social Security
number (SSN) or verification of the individual’s ineligibility for an SSN, and (4)
12 Id.at § 7212(b)(3)(D)-(E).
13 See Negotiated Rulemaking Act of 1990, P.L. 101-648, 104 Stat. 4970 (1990) (codified
as amended at 5 U.S.C. §§ 581 et seq.).
14 See IRTPA, supra note 1 at § 7212(b)(4)(A)-(B).
15 See Emergency Supplemental Appropriations Act for Defense, the Global War on Terror,
and Tsunami Relief, 2005, P.L. 109-13, §§ 201-207, 119 Stat. 231, 312-16 (2005).
name and address of the individual’s principal residence. To the extent that
information verification requirements previously existed, they were a function of
state law and varied from state to state. This REAL ID provision appears to preempt
any state verification standards and replace them with the new federal standards as
established by this statutory language.
Evidence of Legal Status. Section 202(c)(2)(B) of REAL ID appears to
require states to verify an applicant’s legal status in the United States before issuing
a driver’s license or personal identification card. Previously, the categories of
persons eligible for drivers’ licenses were determined on a state-by-state basis. As
indicated above, the IRTPA specifically prevented the Secretary of Transportation
from enacting regulations that would interfere with this authority. This section of
REAL ID appears to preempt any state law requirements and seems to require the
states to verify the legal status of the applicant.
Temporary Drivers’ Licenses and Identification Cards. Section
202(c)(2)(C) of REAL ID establishes a system of temporary licenses and
identification cards that can be issued by the states to applicants who can present
evidence that they fall into one of six categories.16 Under REAL ID, a state may only
issue a temporary driver’s license or identification card with an expiration date equal
to the period of time of the applicant’s authorized stay in the United States. If there
is an indefinite end to the period of authorized stay, the card’s expiration date is one
year. The temporary card must clearly indicate that it is temporary and state its
expiration date. Renewals of the temporary cards are to be done only upon
presentation of valid documentary evidence that the status had been extended by the
Secretary of Homeland Security. If such provisions existed prior to the enactment
of REAL ID, they existed as a function of state law and are preempted by the act.
Other Requirements. Pursuant to § 202(d) of REAL ID, states are required
to adopt procedures and practices to (1) employ technology to capture digital images
of identity source documents, (2) retain paper copies of source documents for a
minimum of seven years or images of source documents presented for a minimum
of 10 years, (3) subject each applicant to a mandatory facial image capture, (4)
establish an effective procedure to confirm or verify a renewing applicant’s
information, (5) confirm with the Social Security Administration an SSN presented17
by a person using the full Social Security account number, (6) refuse issuance of
16 According to REAL ID, persons are only eligible for temporary drivers’ licenses or
identification cards if evidence is presented that they (1) have a valid, unexpired
non-immigrant visa or non-immigrant visa status for entry into the United States; (2) have
a pending or approved application for asylum in the United States; (3) have entered into the
United States in refugee status; (4) have a pending or approved application for temporary
protected status in the United States; (5) have approved deferred action status; or (6) have
a pending application for adjustment of status to that of an alien lawfully admitted for
permanent residence in the United States or conditional permanent resident status in the
17 In the event that an SSN is already registered to or associated with another person to
whom any state has issued a driver’s license or identification card, the state is required to
resolve the discrepancy and take appropriate action.
a driver’s license or identification card to a person holding a driver’s license issued
by another state without confirmation that the person is terminating or has terminated
the driver’s license, (7) ensure the physical security of locations where cards are
produced and the security of document materials and papers from which drivers’
licenses and identification cards are produced, (8) subject all persons authorized to
manufacture or produce drivers’ licenses and identification cards to appropriate
security clearance requirements, (9) establish fraudulent document recognition
training programs for appropriate employees engaged in the issuance of drivers’
licenses and identification cards, and (10) limit the length of time a drivers’ license
or personal identification card is valid to eight years.
In addition to these requirements, REAL ID contains language requiring that
states, if they elect to issue a drivers’ license or personal identification card that does
not conform to the requirements of this act, be required to use a unique color
identifier or design to alert officials that the document is not to be accepted for any
official purpose. Moreover, the states are required to clearly state on the face of the
document that it is not to be accepted for federal identification or for any official
purpose. Further, the enacted version of REAL ID includes a provision requiring the
states to maintain a motor vehicle database that, at a minimum, contains all data
fields printed on the drivers’ license or identification card and all motor vehicle
driver histories, including violations, suspensions, or “points.” Finally, the act
requires the states to provide electronic access to their databases to all other states.
To the extent that any of these requirements previously existed, they did so as a
function of state law. Thus, it appears that the state laws are preempted in favor of
the new federal standards.
Trafficking in Authentication Features for Use in False Identification
Documents. Section 203 of REAL ID amends 18 U.S.C. § 1028(a)(8), which
makes it a federal crime either to actually, or with intent, transport or transfer
identification authentication features18 that are used on a document of the type
intended or commonly presented for identification purposes. By replacing the phrase
“false identification features” with “false or actual authentication features,” this
provision appears to broaden the scope of the criminal provision, making it a crime
to traffic in identification features regardless of whether the feature is false. In
addition, Section 203 requires that the Secretary of Homeland Security enter into the
appropriate aviation-screening database the personal information of anyone convicted
of using a false drivers’ license at an airport.
Additional Provisions. Section 204 of REAL ID authorizes the Secretary
of Homeland Security to make grants to the states, for the purpose of assisting them
in conforming to the new national standards. The section also contains the necessary
language authorizing the appropriation of federal funds for the grant program.
In addition, § 205 provides the Secretary of Homeland Security with the
statutory authority to promulgate regulations, set standards, and issue grants. The
Secretary is required by the statute to consult with both the Secretary of
18 These include, but are not limited to, holograms, watermarks, symbols, codes, images, or
sequences. See 18 U.S.C. § 1028(d)(1) (2000).
Transportation as well as with the states when acting pursuant to this authority.
Moreover, the Secretary is authorized to extend the three-year deadline contained in
Section 202(a)(1) for any state on the condition that the state provide an adequate
justification for their non-compliance.
Promulgation of Regulations. The Department of Homeland Security
(DHS) published a Notice of Proposed Rulemaking (NPRM) for REAL ID on March
3, 2007.19 The NPRM proposed requirements to meet the minimum standards
required under the act. The proposed requirements included, inter alia, proposed
requirements regarding the information and security features that must be
incorporated into each card, proposed application information that must be presented
to establish the identity and immigration status of an applicant before a card can be
issued, and proposed physical security standards for state facilities where drivers’
licenses and personal identification cards are produced. In response, DHS received
over 21,000 comments to the NPRM during the 60-day public comment period. The
final regulations were promulgated by DHS nine months later on January 29, 2008.20
Both at the time that REAL ID was debated in Congress, and during the
regulatory comment period, questions about the constitutionality of the statute were
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 citizen’s 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
Tenth Amendment. Although Congress’s power to regulate matters affecting
interstate commerce is broad, it is not unlimited and, in recent years, has been21
constrained by the Court’s interpretation of the Tenth Amendment. Such an
interpretation appears to be derived from the Tenth Amendment’s protection of state
sovereignty, which the Supreme Court has invoked as a limit on Congress’s Article
I domestic powers. Starting with its decision in Garcia v. San Antonio Metropolitan22
Transit Authority — which held that most disputes over the effects on state
sovereignty of federal commerce power legislation are to be considered political
questions, and that the states should look for relief from federal regulation through
19 See 72 Fed. Reg. 10820 (Mar. 3, 2007).
20 73 Fed. Reg. 5272 (Jan. 29, 2008).
21 The Tenth Amendment states that “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to
the people.” U.S. CONST. Amend. X.
22 469 U.S. 528 (1985).
the political process23 — the Court appears to be willing to use the Tenth Amendment
to protect the sovereign interests of the states. Immediately after Garcia, however,
it appeared that the only way to show a Tenth Amendment violation was to
demonstrate that there had been a breakdown in the national political process that
thwarted the ordinary procedural safeguards inherent in the federal system.24 Several
years later in New York v. United States,25 which involved the “take title” provisions
of the Low-Level Radioactive Waste Policy Amendments Act of 1985,26 the Court
held that the federal statute at issue effectively commandeered the state lawmaking
process because regardless of which option the state chose, “the Act ... compelled
them to enact and enforce a federal regulatory program.”27 In reaching this
conclusion, the Court held that essential to the concept of state sovereignty is control
over the states’ legislative process, which was diminished by the imposition of a
federal mandate.28 In addition, the Court held that the “take title” provision
threatened state sovereignty because it had the potential to cause confusion among
citizens as to which government officials, state or federal, were responsible for
particular actions.29 Finally, the Court made clear that the “States are not mere
political subdivisions of the United States,” and concluded that commandeering their
legislative process treats them as such.30
Building on its holding in New York, the Court in Printz v. United States31
extended the anti-commandeering principle to include not only a state’s legislative
process, but also a state’s executive functions, including its enforcement of the law.
At issue in Printz were specific requirements of the Brady Handgun Violence
Prevention Act, which required state and local officials to, inter alia, execute federal
background checks on potential handgun purchasers.32 The Court, in holding the
Brady provisions unconstitutional, also focused on the importance of state
sovereignty stating that “[i]t is an essential attribute of the States’ retained
sovereignty that they remain independent and autonomous within their proper sphere
23 See id. at 552 (stating that limitations on congressional power to limit the states are “more
properly protected by procedural safeguards than by judicially created limitations on federal
power.”); see also South Carolina v. Baker, 485 U.S. 505 (1988).
24 See Baker, 485 U.S. at 512-13 (holding that “[w]here ... the national political process did
not operate in a defective manner, the Tenth Amendment is not implicated”).
25 505 U.S. 144 (1992).
26 Id. at 505 U.S. at 175. According to the Court, the “take title” provisions “offer[ed] state
governments a choice of either accepting ownership of waste or regulating according to the
instructions of Congress.” Id.
27 Id. at 176
28 Id. at 188.
29 Id. at 168-69.
30 Id. at 188.
31 521 U.S. 898 (1997).
32 Brady Handgun Violence Prevention Act, P.L. 103-159, 107 Stat. 1536 (1993).
of authority.”33 Additionally, the Court held that, like the statute in New York, the
Brady provisions were unconstitutional because they potentially confused citizens
with respect to which government officials, state or federal, were to be held
accountable in the event of any problems with the requirements.34
In 2000, however, the Supreme Court decided Reno v. Condon,35 and upheld,
as consistent with the federalism principles established in New York and Printz,
provisions of the Driver’s Privacy Protection Act (DPPA).36 The DPPA regulated the
ability of the states to disclose and resell information collected from state motor
vehicle departments.37 The Court distinguished the DPPA from the statutes in both
New York and Printz, because, according to the Court, the “DPPA does not require
the states in their sovereign capacity to regulate its own citizens.... It does not require
the [states] to enact any laws or regulations and it does not require state officials to
assist in the enforcement of federal statutes regulating private individuals.”38 In
addition to its holding with respect to the constitutionality of the DPPA, the Court
also referred to an argument advanced by the challenging state that Congress may
only regulate the states directly when it does so via “generally applicable laws or laws
that apply to individuals as well as States.”39 The Court, holding that the DPPA was
“generally applicable,” found that it was not necessary to address this question, and
thus, has left it reserved for future consideration.40
Whether limiting the standards to federal acceptance — as opposed to direct
federal requirements on the states — obviates federalism concerns under Supreme
Court jurisprudence remains to be seen as no cases have yet been filed challenging
the constitutionality of the law. It appears possible to argue, however, that because
the issuance of drivers’ licenses remains a function of state law, the minimum
issuance and verification requirements established by the act, even if limited to
federal agency acceptance, constitute an effective commandeering by Congress of the
state process, or a conscription of the state and local officials who issue the licenses.
Right to Travel. Although not expressly defined in the text of the
Constitution, the Supreme Court has stated that the right to travel is a “privilege and
33 Printz, 521 U.S. at 928.
34 See id. at 929-30 (stating that “[b]y forcing state government to absorb the financial
burden of implementing a federal regulatory program, Members of Congress can take credit
for solving problems without having to ask their constituents to pay higher federal taxes.
And even when the States are not forced to absorb the costs of implementing a federal
program, they are still put in the position of taking the blame for its burdensomeness and for
its defects”). Id.
35 528 U.S. 141 (2000).
36 Id. at 143 (citing the Driver’s Privacy Protection Act, 18 U.S.C. §§ 2721-2725 (1994)).
38 Id. at 151.
40 See id.
immunity of national citizenship under the Constitution,”41 as well as a “part of the
‘liberty’ of which the citizens cannot be deprived without due process of law.”42 The
Court has declared that the constitutional right to travel consists of three different
components: first, it protects the right of a citizen of one state to enter and to leave
another state; second, it protects the right to be treated as a welcome visitor rather
than an unfriendly alien when temporarily present in the second state; and third, for
those travelers who elect to become permanent residents, it protects the right to be
treated like other citizens of that state.43
Precedent regarding the right to travel has developed along two primary strands.
The first addresses burdens imposed by state governments and involves the
Fourteenth Amendment, whereas the second strand involves federally imposed
burdens on international travel and appears to involve the Fifth Amendment’s due
process clause. Under the Fourteenth Amendment cases, the right to travel from one
state to another has been considered a fundamental right under the Constitution.44
Consistent with its status as a fundamental right is the requirement that the
government’s action satisfy the constitutional standard of review often referred to as
strict scrutiny, or heightened scrutiny.45 Under strict scrutiny the government must
provide a compelling state interest for the burden and show that the means utilized
are narrowly tailored to the achievement of the goal or, phrased another way, the least
restrictive means available.46 In addition to the strict scrutiny cases, there have been
cases where the state has placed burdens on the act of travel itself. In these cases,
the justification level appears to be much lower.47 The Court has held that burdens
41 United States v. Guest, 383 U.S. 745, 764 (1966) (Harlan, J. concurring) (citing Corfield
v. Coryell, 4 Wash. C.C. 371 (1825)); see also U.S. CONST. Art. 4, § 2, cl. 1; U.S. CONST.
Amend. 14, § 1.
42 Kent v. Dulles, 357 U.S. 116, 125 (1958).
43 See Sanez v. Roe, 526 U.S. 489, 500-03 (1999).
44 United States v. Guest, 383 U.S. 745, 758 (1966) (stating that “[t]he constitutional right
to travel from one State to another, and necessarily to use the highways and other
instrumentalities of interstate commerce in doing so, occupies a position fundamental to the
concept of our Federal Union. It is a right that has been firmly established and repeatedly
45 Att’y General of New York v. Sato-Lopez, 476 U.S. 898, 906 (1986); see also Shapiro v.
Thompson, 394 U.S. 618 (1969).
46 Id. at 909-10 (stating that “‘if there are other, reasonable ways to achieve [a compelling
state purpose] with a lesser burden on constitutionally protected activity, a State may not
choose the way of greater interference. If it acts at all, it must choose ‘less drastic
means.’”(quoting Dunn v. Blumstein, 405 U.S. 330, 343 (1972); Shelton v. Tucker, 364 U.S.
479, 488 (1960)) (citing Memorial Hospital v. Maricopa Hospital, 415 U.S. 250, 263
47 See United States v. Davis, 482 F.2d 893, 912-13 (9th Cir. 1973) (upholding the pre-
boarding screening of passengers and carry-on articles by stating that the “screening of
passengers and of the articles that will be accessible to them in flight does not exceed
constitutional limitations provided that the screening process is no more extensive nor
intensive than necessary, ... to detect the presence of weapons or explosives, that it is
on travel are justifiable as long as they are uniformly applied and support the safety
and integrity of the travel facilities.48 Thus, for example, highway tolls and airport
fees have been upheld, but a general tax imposed on all individuals leaving a state
may impermissibly restrict travel.49
Conversely, in right to travel cases involving federally imposed burdens on
interstate travel, which implicate the Fifth Amendment, courts appear to reject the
Fourteenth Amendment fundamental rights analysis and apply a less stringent
rational basis test. The rational basis test simply requires that laws be rationally
related to a legitimate government interest.50 Here again, the government appears not
to be required to show a compelling interest to justify a uniformly applied, non-
discriminatory travel-related restriction.51
Given that the airlines are seemingly authorized to refuse service to anyone who
fails to present proper identification, it appears that a strong argument can be made
that REAL ID imposes an additional burden on citizens who wish to travel by
federally regulated aircraft. Thus, the inquiry should focus on the standard of review
that should be applied. That said, it appears difficult to argue that ensuring the
security and validity of identification documents will fail to increase passenger safety
and transportation facility security, which are likely compelling governmental
interests. Thus, it seems that, regardless of which standard of review is applied, the
government may be in a strong position to argue that not only are the identification
requirements justifiable, but also that their burden on the right to travel is minimal
and, in light of the present conditions, entirely reasonable. Moreover, it is important
to note that not having a REAL ID will not prevent individuals from boarding
aircraft. Rather, the lack of a REAL ID, whether by state non-compliance or personal
choice, will simply mean either that alternative identification will have to be
produced (such as a military ID, passport, or other documents accepted by the
Transportation Security Administration (TSA)) or additional security screening will
be required before the individual is allowed to board.
First Amendment Rights.
Free Exercise of Religion. According to some opponents, the fact that
REAL ID requires, without exemption, that a digital photograph appear on each
confined in good faith to that purpose, and that potential passengers may avoid the search
by electing not to fly”).
48 See Evansville-Wanderburgh Airport Auth. Dist. v. Delta Airlines, 405 U.S. 707, 711-715
49 Id. at 714-16
50 See City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 440 (1985); see
also Schweiker v. Wilson, 450 U.S. 221, 230 (1981); United States Railroad Retirement
Board v. Fritz, 449 U.S. 166, 174-175 (1980); Vance v. Bradley, 440 U.S. 93 (1979); New
Orleans v. Dukes, 427 U.S. 297, 303 (1976).
51 See e.g., Regan v. Wald, 468 U.S. 222 (1983); see also Zemel v. Rusk, 381 U.S. 1 (1965);
Aptheker v. Secretary of State, 378 U.S. 500, 514 (1964).
document violates the religious beliefs of certain sects of Amish Christians, Muslim
women, as well as other religions.52 Thus, it has been argued that this requirement
unconstitutionally impacts the free exercise of their religion.
The Supreme Court has consistently affirmed that the Free Exercise Clause
protects religious beliefs; however, protection for religiously motivated conduct has
waxed and waned over the years. In recent years, the Court has gradually abandoned
any distinction between belief and conduct, developing instead a balancing test to
determine when a uniform, nondiscriminatory requirement by government mandating
action or non-action by citizens, such as the photo requirement contained in REAL
ID, must allow exceptions for citizens whose religious scruples forbid compliance.
In Sherbert v. Verner,53 the Court required a religious exemption from a secular,
regulatory piece of economic legislation. Ms. Sherbert had been disqualified from
receiving unemployment compensation because, as a Seventh Day Adventist, she
would not accept Saturday work. According to state officials, this meant she was not
complying with the statutory requirement to stand ready to accept suitable
employment. The Court held that her denial of benefits could be justified under the
Free Exercise Clause if “her disqualification as a beneficiary represents no
infringement by the State of her constitutional rights of free exercise, or [if] any
incidental burden on the free exercise of appellant’s religions may be justified by a
‘compelling state interest in the regulation of a subject within the State’s
constitutional power to regulate....’”54
After Sherbert, the Court applied the “compelling state interest” test in several
cases, finding, for example, in Wisconsin v. Yoder,55 that a state compulsory
attendance law, as applied to require Amish children to attend 9th and 10th grades of
public schools in contravention of Amish religious beliefs, violated the Free Exercise
Clause. Conversely, however, the Court held that the government had a “compelling
interest” with respect to compulsory participation in the Social Security system,56 as
well as with regard to the denial of tax exemptions to church-run colleges whose
racially discriminatory admissions policies derived from religious beliefs.57
Finally, in 1990 the Court decided Employment Division v. Smith,58 which
involved a challenge to a state statute that denied unemployment benefits to drug
52 See, e.g., American Civil Liberties Union, “Real ID Scorecard,” available at,
[ ht t p: / / www.acl u.or g/ i mages/ gener al / a sset _upl oad_f i l e 162_33700.pdf ] .
53 374 U.S. 398 (1963).
54 Id. at 403 (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)).
55 406 U.S. 205 (1972).
56 See United States v. Lee, 455 U.S. 252 (1982).
57 See Bob Jones University v. United States, 461 U.S. 574 (1983).
58 494 U.S. 872 (1990).
users including Native Americans engaged in the sacramental use of peyote.59 The
Court in Smith indicated that the “compelling interest test” does not apply to require
exemptions from generally applicable criminal laws. Criminal laws, held the Court,
are “generally applicable” when they apply across the board regardless of the
religious motivation of the prohibited conduct, and are “not specifically directed at
... religious practices.”60 Thus, except in the relatively uncommon circumstance
when a statute calls for individualized consideration, then, the Free Exercise Clause
affords no basis for exemption from a “neutral, generally applicable law.” As the
Court concluded in Smith, accommodation for religious practices incompatible with
general requirements must ordinarily be found in “the political process.”61
Subsequently, in 1993, Congress sought to supersede Smith and substitute a
statutory rule of decision for free exercise cases. The Religious Freedom Restoration
Act (RFRA)62 provides that laws of general applicability — federal, state, and local
— may substantially burden the free exercise of religion only if they further a
compelling governmental interest and constitute the least restrictive means of doing
so. As Congress declared in the act itself, the purpose was “to restore the compelling
interest test as set forth in Sherbert v. Verner ... and to guarantee its application in all
cases where free exercise of religion is substantially burdened.”63
In the most recent Supreme Court case to address these issues, Gonzales v. O
Centro Espirita Beneficente Uniao Do Vegetal,64 the Court affirmed a preliminary
injunction preventing the government from using the Controlled Substances Act from
prosecuting practitioners of a Amazon Rainforest religious sect that receives
communion by drinking a tea that contains hoasca, a hallucinogen that is prohibited
under the federal Controlled Substances Act (CSA).65 Although the case arose on
procedural grounds, the Court nevertheless held that the government has a burden of
demonstrating a “compelling government interest,” such that no exception can be
made to accommodate the religious use of the drug.66 According to the Court, the
absence of this required showing by the government, even at the preliminary
injunction stage, necessitated a finding for the plaintiffs and a granting of the
Thus, the question for a reviewing court, should a challenge to REAL ID be
brought on Free Exercise grounds, will be whether the government has a “compelling
59 Id. at 890.
60 Id. at 878.
61 Id. at 890.
62 Religious Freedom Restoration Act, P.L. 103-141, 107 Stat. 1488 (1993) (codified as
amended at 42 U.S.C. §§ 2000bb to 2000bb-4 (2000)).
63 Id. at § 2(b)(1).
64 546 U.S. 418 (2006).
65 Id. at 423.
66 See id. at 439.
interest” in uniform application of the law, such that no exceptions, even on
reasonable religious grounds, can be afforded. Given REAL ID’s strong basis as both
an anti-terrorism and fraud prevention statute, it appears that the government would
have a strong argument that a compelling interest does exist for not granting any
exceptions to the act’s requirements. Conversely, it also appears reasonable to argue
that although the government’s interest is strong, reasonable accommodations on
religious grounds are still possible and are required by the First Amendment.
Right to Assemble and Petition the Government and the Right to
Anonymity. Finally, some have argued that REAL ID is a violation of the First
Amendment because the measure infringes upon a citizen’s right to freely assemble,
associate, and petition the government.68
The First Amendment states that “Congress shall make no law ... abridging the
... right of the people peaceably to assemble, and to petition the government for a
redress of grievances.”69 The argument appears to be that linking a state’s issuance
of enhanced identification documents to its citizen’s ability to board a federally
regulated aircraft prevents the full exercise of an individual’s liberties, such as those
provided by the First Amendment, that depend on a citizen’s ability to freely move
throughout the country.70 By imposing burdensome requirements on interstate travel
the government has arguably prevented persons who wish to refrain from identifying
themselves and/or submitting to enhanced security screening from exercising their
Although it appears that neither the Supreme Court nor any lower federal court
has been presented with an analogous situation, the Court has indicated that
anonymity is a concept protected by the First Amendment. For example, in Thomas
v. Collins, Sheriff, the Court invalidated a Texas statute requiring labor organizers to
register and obtain an organizer’s card before making speeches to assembled workers
as incompatible with the guarantees of the First Amendment.71 As recently as 2004,
the Court has upheld the general notion that citizens have a right to anonymity
especially in situations where a citizen is not suspected of a crime.72 In light of these
precedents, it may be possible to challenge the identification requirement on the
grounds that it violates the First Amendment right of citizens to be anonymous;
however, claims made regarding the rights of association and petition of the
government do not appear to have received the same support.
68 See, e.g., American Civil Liberties Union, “Real ID Scorecard,” available at,
[ ht t p: / / www.acl u.or g/ i mages/ gener al / a sset _upl oad_f i l e 162_33700.pdf ] .
69 U.S. CONST. Amend. I.
70 Aptheker v. Sec. of State, 378 U.S. 500, 520 (1964) (stating that “[f]reedom of movement
is akin to the right of assembly and to the right of association”).
71 Thomas v. Collins, Sheriff, 323 U.S. 516, 539 (1944) (stating that “[l]awful public
assemblies, involving no element of grave and immediate danger ... are not instruments of
harm which require previous identification of speakers”).
72 See Hiibel v. Sixth Judicial Dist. Court, 124 S.Ct. 2451 (2004).
Although it may be argued that a general right of anonymity exists, it is difficult
to connect the implication of this right to the purpose of REAL ID. A strong
argument exists that the regulations are in no way intended to impact a person’s First
Amendment rights; rather, the regulations at issue are aimed at preventing and
deterring the use of fraudulent identification documents for federal purposes. Thus,
these regulations can arguably be said to have, at most, an incidental or indirect effect
on rights protected by the First Amendment. In cases where the regulation at issue
was not specifically directed at First Amendment rights, the Court has held such
regulations subject to First Amendment scrutiny only when “it was conduct with a
significant expressive element that drew the legal remedy in the first place, ... or
where a statute based on a non-expressive activity has the inevitable effect of
signaling out those engaged in expressive activity.”73 Given the indirect effect that
these regulations may have on First Amendment rights, it would appear unlikely that
challengers could establish the significant or substantial impact on their right to
associate or petition the government that would be required to trigger First
“Unfunded Mandate” Issues
According to some advocacy groups, state and federal elected officials —
including numerous commentators to the proposed regulations74 — and others, REAL
ID imposes an unconstitutional “unfunded mandate” on the states.75 Generally
speaking, the term “unfunded mandate” refers to requirements that one unit of
government imposes on another without providing funds to pay for costs of
compliance. In this instance, the argument has often been advanced that the federal
government has imposed the requirements of REAL ID on the states without
providing adequate funding to cover the implementation costs.
Arguments related to “unfunded mandates” typically take two forms. First, is
the argument that unfunded mandates are unconstitutional as violations of the Tenth
Amendment. As indicated above, jurisprudence with respect to the Tenth
Amendment is limited, and the federal courts have not to date specifically addressed
the “unfunded mandate” issue.
73 Arcara v. Cloud Books, 478 U.S. 697, 706-07 (1986); see also Fighting Finest Inc. v.
Bratton, 95 F.3d 224, 228 (2d Cir. 1996) (stating that “to be cognizable, the interference
with associational rights must be ‘direct and substantial’ or ‘significant’”).
74 See 73 Fed. Reg. 5272, 5283 (Jan. 29, 2008) (indicating that states, AAMVA, and
“numerous commenters” wrote that REAL ID was an unfunded mandate).
75 See, e.g., Robert W. Dalton, Legislators seeking Real ID Solution, (March 6, 2008),
Spartanburg Herald Journal, [http://www.goupstate.com/article/20080306/NEWS/
803060354/1051/NEWS01] (noting that South Carolina Governor Mark Sanford has called
REAL ID and “unfunded mandate”); Gregg Carlstrom, Lawmakers: DHS Budget
Shortchanges States, federaltimes. com, (March 6, 2008), [http://federaltimes.com/
index.php?S=3407884] (quoting Tennessee Senator Lamar Alexander as indicating that
REAL ID is an “unfunded mandate”).
Second, “unfunded mandate” arguments refer to the statutory requirements of
the Unfunded Mandates Reform Act of 1995 (UMRA).76 UMRA contains both
legislative and regulatory reform provisions designed to limit or prohibit the number
of unfunded mandates adopted by Congress and the regulatory agencies. The
legislative reforms establish requirements for committees and the Congressional
Budget Office (CBO) to study and report on the magnitude and impact of mandates
in proposed legislation. In addition, the reforms include point-of-order procedures
by which the requirements can be enforced, and by which the consideration of
measures containing unfunded intergovernmental mandates can be blocked. With
respect to regulations, UMRA requires federal agencies to prepare written statements
identifying the costs and benefits of any federal mandate in excess of $100 million
annually (adjusted annually for inflation)77 imposed through the rulemaking process.
The written assessments must identify the law authorizing the rule, anticipated costs
and benefits, the share of costs to be borne by the federal government, and the
disproportionate costs on individual regions or components of the private sector.
Additionally, the law requires that the assessments include estimates of the effect on
the national economy, descriptions of consultations with non-federal government
officials, and a summary of the evaluation of comments and concerns obtained
throughout the promulgation process.78 Moreover, UMRA requires that federal
agencies consider “a reasonable number” of policy options and select the most
cost-effective or least burdensome alternative.79 Judicial review under UMRA is
limited to ensuring that the agency complies with the procedural requirements of the
statute. Courts may compel the agency to comply with the statute, but failure to do
so cannot be used as a basis for invalidating a rule.80
Although it appears that REAL ID requires significant expenditures by the states
to comply with its requirements, UMRA arguably exempts the REAL ID regulations
from the statute’s requirements. Specifically, Section 4 of UMRA excludes from the
scope of the law final regulations that are “necessary for the national security.”81 In
addition, UMRA excludes regulations that “incorporate requirements specifically set
forth in law.”82 DHS relies on both of these provisions in its explanation as to why
REAL ID is not an unfunded mandate.83 Nevertheless, in its explanatory statement
accompanying the final rule, DHS indicated that it complied with the provisions of
76 Unfunded Mandates Reform Act of 1995, P.L. 104-4, 109 Stat. 48 (1995) (codified at 2
U.S.C. § 1501 et seq.)[hereinafter UMRA].
77 Id. at § 202 (codified at 2 U.S.C. § 1532(a)).
78 Id. at §§ 201-208 (codified at 2 U.S.C. §§ 1531-38).
79 Id. at § 205 (codified at 2 U.S.C. § 1535).
80 Id. at § 401 (codified at 2 U.S.C. § 1571); see also American Trucking Assoc. Inc., v.
United States Environmental Protection Agency, 175 F.3d 1027 (D.C. Cir. 1999) (noting
that failure to comply with the provisions of UMRA could not be a basis for invalidating the
agency’s rule); Associated Builders & Contractors Inc. v. Herman, 976 F.Supp. 1 (D.D.C.
81 Id. at § 4 (codified at 2 U.S.C. § 1503).
82 Id. at § 201 (codified at 2 U.S.C. § 1531).
83 See 73 Fed. Reg. 5272, 5321 (Jan. 29, 2008).
UMRA, noting that it analyzed the cost to the states, considered alternatives, and
solicited input from state and local governments.84
Time Line For State Implementation
In accordance with the effective date of the statute, on May 11, 2008, all drivers’
licenses and personal identification cards from non-compliant states will no longer
be accepted by federal officials for “official purposes,” which includes access to
federal facilities, boarding federally regulated commercial aircraft, entry into nuclear
power plants, and such other purposes as established by the Secretary of Homeland
Security.85 This general rule will take effect unless a state has requested an extension
Extensions of the May 11, 2008, deadline are authorized by § 205(b) of the
REAL ID statute, specifically “to meet the requirements of [the act].” According to
the final rule, however, the states requesting such an extension must have notified
DHS by March 31, 2008.86 If granted, all extensions will be valid until December 31,
2009. As of the writing of this report, 49 states and the District of Columbia have
been granted the initial extensions. The only state that has not yet received the
extension is Maine.87
An issue that has arisen regarding the extensions is what constitutes “to meet the
requirements of [the act].” Several states have made clear in their letters requesting
the extension that either due to existing state law, or other concerns regarding REAL
ID in general, that their request for an extension is not to be viewed as an indication
that they intend to fully implement the requirements of REAL ID.88 Although it
84 Id. at 5329.
85 Id. at 5332; see also 6 C.F.R. § 37.3 (2008). In a recent press briefing, the Secretary of
Homeland Security, Michael Chertoff, stated that REAL ID goes into effect on May 11,
2008, and that it will be enforced. See Remarks by Homeland Security Michael Chertoff
at Pen-and-Pad Briefing on the Department’s Fifth Anniversary, March 6, 2008, available
at, [http://www.dhs.gov/xnews/releases/pr_1204843734531.shtm] (stating that “I’m not
bluffing about May 11, ... the law makes it clear ... if you don’t get a waiver then you’re
going to have — a driver’s license will not be acceptable for federal purposes as an ID”).
86 See 73 Fed. Reg. at 5339; see also 6 C.F.R. §37.63 (2008).
87 See DHS REAL ID website, available at, [http://www.dhs.gov/xprevprot/programs/
gc_1200062053842.shtm] [hereinafter DHS website]. According to reports, at the time that
the deadline expired, DHS and Maine were still negotiating langauge that would permit the
granting of an extension. Maine has been granted two extra days to respond to DHS’s
concerns. See AP, S.C. Gets Extension On New ID Law, WASH. POST. A14, available at,
[http://www.washingtonpost.com/ wp-dyn/cont e n t / a r t i c l e / 2008/03/31/
AR2008033102806.html] (Apr. 1, 2008) (stating that Maine has been given until 5 p.m. on
April 2 to “work out its differences with the government”).
88 See, e.g., Letter from John J. Barthelmes, Commissioner, State of New Hampshire
Department of Safety, to Stewart A. Baker, Assistant Secretary for Policy, U.S. Department
of Homeland Security (Mar. 26, 2008), available at, [http://blog.wired.com/27bstroke6/files/
real_id_extension_letter_2_4.pdf] (stating that “New Hampshire is ... currently prohibited
would appear that such an indication would arguably make the state ineligible for the
extension, DHS has, to date, granted each of these extensions, despite such language
in the state’s request letter.89
In addition to the initial extension, states may request a second extension if, by
October 11, 2009, states file with DHS a “Material Compliance Checklist” that
demonstrates that the state is in “material compliance” with all of the benchmarks
established by the final rule.90 This extension, if granted, will be valid until May 10,
2011.91 The final regulation does not indicate precisely what DHS considers to be
“material compliance”; therefore, it appears that the decision to grant a second
extension is solely at the discretion of the Secretary or his designee.
According to the final rule, states must meet all of the REAL ID requirements
by December 1, 2014, for drivers’ licenses and personal identification cards issued
to persons born after December 1, 1964, and by December 1, 2017, for persons born
before December 1, 1964.
State Legislative Responses and Potential Issues for Citizens
of Non-Compliant States
Since its adoption in 2005, REAL ID has been a highly contested issue among
state legislatures and governors. Prior to the publication of the NPRM 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
by law from implementing the REAL ID Act”); see also Letter from Mike McGrath,
Attorney General, State of Montana, to The Honorable Michael Chertoff, Secretary of
Homeland Security, U.S. Department of Homeland Security, (Mar. 21, 2008), available at,
[http://blog.wired.com/27bstroke6/files/mcgrath_fax.pdf]; Letter from George Valverde,
Director, State of California, Department of Motor Vehicles, to The Honorable Michael
Chertoff, Secretary of Homeland Security, U.S. Department of Homeland Security, (Mar.
(stating that “California’s request for an extension is not a commitment to implement REAL
89 See Letter from Stewart A. Baker, Assistant Secretary for Policy, U.S. Department of
Homeland Security, to John J. Barthelmes, Commissioner, State of New Hampshire
Department of Safety, (Mar. 27, 2008), available at, [http://blog.wired.com/27bstroke6/
files/real_id_extension_letter_2_4.pdf] (stating that “[u]nder the statute, the Department can
only grant an extension of the compliance deadline. Therefore, I can only provide the relief
you are seeking by treating your letter as a request for an extension”); see also Letter from
Stewart A. Baker, Assistant Secretary for Policy, U.S. Department of Homeland Security,
to Mike McGrath, Attorney General, State of Montana, (Mar. 21, 2008), available at,
90 73 Fed. Reg. at 5274 & 5339. The benchmarks are delineated in the “Material
Compliance Checklist,” which is available from the DHS website. See DHS website, supra
note 86, available at, [http://www.dhs.gov/xlibrary/assets/real_id_final_rule_part2_2008-
going to necessitate, either in terms of cost or potential changes to state law.92 Since
the publication of the NPRM in 2007, there has been a dramatic increase in state
responses to REAL ID and its requirements.
To date, it appears that only six states — Indiana, Nevada, Ohio, Tennessee,
Virginia, and Wisconsin — have affirmatively enacted legislation that in some form
adopts, or requires to be adopted, the federal minimum standards that are articulated
in REAL ID.93 These statutes, however, vary in type, and arguably in effectiveness.
For example, in both Tennessee and Virginia, the language appears in annual
appropriations acts, which arguably means that compliance may have to be
reaffirmed during the state’s next appropriations cycle, or it can be eliminated.94
Conversely, in Nevada, the legislature adopted into law new provisions of the state’s
motor vehicle code that appear to be intended to bring the state into full compliance
with REAL ID.95 It also appears that an additional 12 states have statutory language
pending that would require the appropriate state departments to come into
compliance with the requirements of REAL ID.96
Conversely, there are nine states — Georgia, Idaho, Maine,97 Montana,
Nebraska, New Hampshire, Oklahoma, South Carolina, and Washington — that have
adopted state statutes that appear to indicate a refusal to comply with the
requirements of REAL ID.98 These statutes vary in their terms and effectiveness as
well. Montana, for example, appears to have adopted the strongest non-compliance
law, which directs the Montana Department of Justice and the motor vehicle
administration not to participate in the federal REAL ID Act and to report to the
92 In September 2006, the National Conference of State Legislatures (NCSL), National
Governors Association (NGA), and the American Association of Motor Vehicle
Administrators (AAMVA) published a National Impact Analysis, which contained a 50-state
survey of the likely impacts that REAL ID will have on state laws and regulations. See
NGA, NCSL, AAMVA, The REAL ID Act: Final Impact Analysis, available at,
[http://www.ncsl.org/ print/statefed/Real _ID_Impact_Report_FINAL_Sept19.pdf].
93 National Conference of State Legislatures (NCSL), “REAL ID State Legislation
Database,” available at, [http://www.ncsl.org/standcomm/sctran/RealIDdb.cfm] [hereinafter
94 See 2007 TENN. PUB. ACTS, ch. 603 § 67, item 10 (2007); see also 2007 VA. ACTS, ch.
95 NV. LAWS 2007, c. 486, § 49 (June 13, 2007).
96 These states include California, Kansas, Maryland, Michigan, Missouri, North Carolina,
Nebraska, New York, Oregon, Texas, Virginia, and Vermont. See NCSL Database, supra
97 It should be noted that Maine’s statute specifically prevents the state’s participation in
a “national identification card” program; therefore, it is unclear whether it will be
interpreted as preventing compliance with REAL ID. It is included, however, because many
believe that REAL ID is a de facto national identification card. See infra notes 145-147 and
98 See NCSL Database, supra note 93.
governor any attempts by DHS to secure implementation of REAL ID.99 In other
examples, the Idaho legislature appropriated $0 for implementation in 2008,100
whereas the Georgia legislature authorized the governor to delay implementation
unless certain conditions are met.101 In addition to the statutes directly prohibiting
compliance, the legislative chambers in 15 states have adopted non-binding
resolutions or memorials that urge Congress to either amend or repeal REAL ID,
and/or that indicate the state’s intent to not comply.102 All told, 24 states have passed
legislation that either prohibits state compliance with the act or urges Congress to
amend or repeal REAL ID.
In addition to those states that have enacted either statutory commands or non-
binding resolutions, there are a number of states that have such matters pending
before their state lawmakers. Currently, it appears that 11 states have bills that would
prohibit compliance pending before their legislatures,103 whereas another 20 states
and the District of Columbia have non-binding resolutions or memorials awaiting
The ramifications of having several states that do not opt to comply with the
terms of REAL ID are far from clear. As previously discussed, the act itself is
voluntary, binding only on federal agencies, not on the states. Thus, the statute
contains no penalty for non-compliance. To the extent that there is a penalty for non-
compliance by a state, it appears to be borne by the citizens of the non-compliant
state. For example, after May, 11, 2008, the citizens of a state such as Montana —
which has passed a law prohibiting compliance and has refused to file for an
extension — will not be able to use their state-issued drivers’ licenses or personal
identification cards for official purposes. Therefore, after May 11, Montana citizens
will not be able to show their Montana licenses to board a federally regulated aircraft
or enter a federal building. Although this does not mean that citizens of the non-
compliant states cannot engage in interstate travel via airplane — as many other
forms of identification are acceptable by the Transportation Security Administration
(TSA) (i.e., passport, military ID, other forms of state or federally issued
identification) — or enter a federal court house or other federal building, it arguably
does impose an additional burden on the citizen because the state has chosen not to
99 See MONT. CODE ANN. § 61-5-128 (2007).
100 See 2007 ID. SESS. LAWS. ch. 236 § 19 (2007).
101 See GA. CODE ANN., § 40-5-4.1 (2007)
102 These states include Arkansas, Arizona, Colorado, Hawaii, Idaho, Illinois, Maine,
Michigan, Missouri, North Dakota, Nevada, Pennsylvania, South Carolina, Tennessee, and
Utah. See NCSL Database, supra note 93.
103 These include Alaska, Arizona, Kansas, Minnesota, Missouri, Oregon, Pennsylvania,
Rhode Island, Utah, Virginia, and West Virginia. See NCSL Database, supra note 93.
104 These include Alabama, Arizona, California, Kentucky, Louisiana, Massachusetts,
Maryland, Michigan, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, Rhode
Island, Tennessee, Texas, Vermont, Washington, West Virginia, and Wyoming. See NCSL
Database, supra note 93.
In addition, non-compliant states would apparently create holes in the scheme
of state-to-state data sharing that is an integral part of REAL ID. Presumably, non-
compliant states will not participate in the database creation or information-sharing
system envisioned by the REAL ID regulations. Thus, it would appear that potential
problems may arise if, for example, an applicant in a compliant state presents a
document (i.e., birth certificate or other required paperwork) that requires verification
from a non-compliant state. At this early stage of implementation, however, it is
unclear precisely what effect this may have.
Moreover, the existence of non-compliant states presents the potential for
conflicts among the states, in addition to those between the non-compliant states and
the federal government. For example, will a non-REAL ID-compliant driver’s
license or personal identification card issued by Montana continue to be a valid form
if identification in Indiana, a state that has a specific compliance law in place? The
converse question also exists; namely, will Montana accept forms of identification
that comply with REAL ID as valid within its own jurisdiction? Currently, neither
REAL ID itself, nor the existing state laws appear to expressly address these
questions; however, they appear likely to arise as implementation advances.
Finally, it has been noted that several of the states that have adopted statutes
prohibiting compliance with REAL ID have also filed requests for extensions from
DHS.105 According to DHS, Georgia, Nebraska, Oklahoma, and Washington have
all requested the extensions.106 Although it appears possible to distinguish between
a request for an extension and non-compliance, as indicated above, DHS’s response
to several states suggests that it is not strictly interpreting the statutory language that
requires that extensions be granted only to those states evidencing an intent to
Selected Regulatory Requirements of REAL ID
The final regulations promulgated by DHS on January 29, 2008,108 contained
over 280 pages and responded to over 21,000 comments. This section contains a
summary description and analysis of several of the major elements of the REAL ID
Full Legal Name. Section 37.17 of the new regulations require that REAL
ID-compliant drivers’ licenses and personal identification cards contain the name that
appears on the source documents presented by the applicant to establish identity. In
other words, the name that must appear on a REAL ID-compliant card must be the
same as the name that is on the identity document (passport, birth certificate, Social
105 See, e.g., Declan McCullagh, “States say no (and yes) to Real ID before May deadline,”
CNETNews.com, Mar. 4, 2008, available at, [http://www.news.com/8301-13578_3-
106 DHS website, supra note 87.
107 See supra notes 88-90 and accompanying text.
108 73 Fed. Reg. 5272 (Jan. 29, 2008).
Security card, etc.) presented at the time an application for the card is submitted.109
The regulations do provide for an exception for persons whose names appear
differently on identity documents due to “marriage, adoption, court order, or other
mechanism permitted by State law or regulation.”110
Commentators and critics of this approach have regularly pointed out that given
the lack of a uniform convention with respect to this listing of names on federal
documents this requirement is potentially burdensome to state officials who may be
presented with numerous documents each with variations on the same name.111 In
addition to the myriad of federal documents that utilize different naming conventions,
there are foreign documents, each with their own naming rules and conventions, that
may be presented as well. In short, the absence of any uniformity with respect to
naming requirements makes the REAL ID standard burdensome to implement.
Moreover, commentators noted that not all of the potential name variations will be
covered by existing state laws or regulations. Thus, it remains possible that an
individual could have their REAL ID application rejected because their name
variation, while reasonable and perhaps practically justifiable, does not fall within a
state’s established legal exceptions. As a result, it appears that the burden may fall
to the individual applicant to reconcile the names on their various documents before
applying for a REAL ID. DHS has responded to these concerns by permitting any
and all variations to the applicant’s name that are accepted by the issuing state’s laws
or regulations. DHS also asserts that it has modified the language in the final rule so
that it more closely adheres to the naming conventions utilized by the Social Security
Administration, Department of State, and other document-issuing agencies.112
Principal Residence. The final REAL ID regulations contain two provisions
relevant to the applicant’s “principal address.” DHS has defined the phrase
“principal residence” to mean the “location where the person is currently domiciled113
(i.e., presently resides even if at a temporary address).” The first provision relates
to what the individual is required to show when applying for a REAL ID. According
to § 37.11(f), “to document the address of principal residence, a person must present
at least two documents of the State’s choice that include the individual’s name and114
principal residence.” The second provision relates to what address is required to
appear both on the face of the REAL ID and in the machine-readable portion.
Pursuant to §37.17(f), the principal residence must appear on the REAL ID unless
one of the following exceptions applies:
109 73 Fed. Reg. at 5334; see also 6 C.F.R. § 37.17 (2008).
110 Id. at 5333.
111 Id. at 5300. In one commonly cited example, the name James Joseph Johnson Jr. may
have had identity documents issued with the name “ Jim Johnson,” “J.J. Johnson,” “Jim
Johnson Jr.,” or “Joe Johnson.”
113 Id. at 5295.
114 Id. at 5333.
(1) a State law, regulation, or DMV procedure permits display of an alternative
address, or (2) Individuals who satisfy any of the following: (i) If the individual
is enrolled in a State address confidentiality program which allows victims of
domestic violence, dating violence, sexual assault, stalking, or a severe form of
trafficking, to keep, obtain, and use alternative addresses; and provides that the
addresses of such persons must be kept confidential, or other similar program;
(ii) If the individual’s address is entitled to be suppressed under State or Federal
law or suppressed by a court order including an administrative order issued by
a State or Federal court; or (iii) If the individual is protected from disclosure of
information pursuant to section 384 of the Illegal Immigration Reform and115
Immigrant Responsibility Act of 1996.
Several concerns continue to be raised about this provision. Among them are
the impact on homeless and low-income individuals who may not have permanent
residences; and the effect of the provision on those persons who, because of personal
safety, confidentiality, or other reasons may have a legitimate need to keep their
address off of identifying documents, but reside in a state that does not have a formal
law, regulation, or DMV procedure permitting them to do so. With respect to the
first concern, DHS has indicated that its final rule grants the states “wide latitude to
address issues concerning an individual’s address of principal residence within their
State-specific exceptions process.”116 In other words, according to DHS, the states
will retain sufficient authority to issue REAL IDs to individuals, including those who
are homeless, so long as the exceptions are properly documented in the state’s issuing
With respect to the second concern — personal security and confidentiality
issues — DHS indicates that under the final rule the states have “broad authority to
protect the confidentiality of the address of principal residence for certain classes of
individuals.”117 One commentator, however, noted that only 24 jurisdictions
currently have formal confidentiality programs in place that will satisfy the rule’s
specific exception.118 Thus, in those states where formal programs do not currently
exist, it is unclear how the confidentiality of those persons who may be placed at risk
will be protected. Moreover, how those formal programs may come about, should
jurisdictions opt to create them, will vary depending on existing laws and the
required changes. For example, in some states it may be possible for confidential
programs to be created either directly by the governor or by the agency responsible
for issuing drivers’ licenses and personal identification cards, whereas in other states
legislative action may be required.
Document Verification Requirements. REAL ID specifically requires
states to verify the validity of the supporting documents presented by the applicant
with the document’s issuing agency. Section 37.13 of the final regulation provides
the general standards for completing this verification. First, § 37.13(a) requires the
states to “make reasonable efforts” to ensure that applicants do not have multiple
115 Id. at 5335.
116 Id. at 5302.
REAL IDs issued under different identities.119 Second, § 37.13(b) requires the states
to verify documents presented via electronic validation systems “as they become
available or use alternative methods approved by DHS.”120 The regulations proceed
to provide for verification requirements for five different types of documents.
First, with respect to documents presented by applicants that are issued by DHS,
such as identity documents or documents establishing lawful presence in the United
States, the regulations state that they can be verified using the Systemic Alien
Verification System for Entitlements (SAVE).121
Second, concerning Social Security numbers (SSNs), the regulations require
verification through either the Social Security Administration, or another method
approved by DHS. One such alternative, according to DHS, is “AAMVAnet,” which
is the network system that the American Association of Motor Vehicle
Administrators (AAMVA) operates to facilitate data verification for state motor
vehicle departments and which appears to already support verification of both SSNs
and birth certificates.122
Third, regarding birth certificate verification, the regulations indicate that states
“should use the Electronic Verification of Vital Events (EVVE) system or other
electronic systems whenever the records are available.”123 In the explanatory section
of the final rule, however, DHS acknowledges that EVVE is not yet ready for full
implementation.124 Given the unavailability of the preferred electronic resource, the
fact that birth records are retained by the individual states and not the federal
government, and the wording of the regulation, it is unclear what other methods of
birth-certification verification are available. Therefore, there remains an open
question with respect to how the states are going to comply with this requirement.
Fourth, with respect to documents issued by the Department of State (DOS),
such as passports, the regulations require that the states verify the document with
DOS or by means approved by DHS. No specific electronic system or preferred
method, however, is indicated in the final rule.
Finally, regarding REAL IDs issued by other states that may eventually be used
as a form of identification, the regulations indicate that they will be required to be
verified with the state of issuance.125 Similar to DOS documents, no specific
verification system is mentioned or discussed. Presumably, the state-to-state
information-sharing system envisioned by other sections of the regulations will
119 Id. at 5334.
122 Id. at 5275.
123 Id. at 5334.
124 Id. at 5297.
125 Id. at 5334.
provide a mechanism for the verification of these documents. Since no state is
currently issuing REAL IDs, verification does not yet appear to be an issue.
Although the regulations are silent with respect to the verification of an
applicants “principal residence,” the underlying REAL ID statute appears to include
this requirement as well. Several commentators indicated concerns with respect to
this, as they noted that no electronic means currently exist at either the state or federal
level that will permit such a verification to occur.126 DHS concurs with this
assessment and responds by noting that “[t]he rule gives States maximum flexibility
in determining an individual’s address of principal residence.”127 Despite the
statutory language, because the text of the final regulation is silent regarding
verification of principal residence, it is unclear whether states will actually be
required to perform this task to be considered in full compliance.
Machine-Readable Technology. Section 37.19 of the final regulation
requires that — to meet the statutory requirement — all REAL IDs use compatible
machine-readable technology. Specifically, the regulations state that “States must
use the ISO/IEC 15438:2006(E) Information Technology — Automatic identification128
and data capture techniques — PDF417 symbology specification.” In addition, the
regulations require that the following data elements be contained on the bar code:
(a) expiration date; (b) full legal name, unless the State permits an applicant to
establish a name other than the name that appears on a source document,
pursuant to § 37.11(c)(2); (c) date of transaction; (d) date of birth; (e) gender; (f)
address as listed on the card pursuant to § 37.17(f); (g) unique driver’s license
or identification card number; (h) card design revision date, indicating the most
recent change or modification to the visible format of the driver’s license or
identification card; (i) inventory control number of the physical document; (j)129
State or territory of issuance.
The regulations also indicate that 45 states and the District of Columbia already130
utilize bar codes that comply with the PDF417 standard. However, it appears that
a number of states may have to alter the type of information and method in which
said information is stored to comply with the regulations.
Contrary to the assertion of some REAL ID opponents,131 neither biometric
technology nor radio-frequency identification (RFID) is required by the regulations
to be used on REAL ID-compliant licenses or personal identification cards.
Although these more advanced technologies are not required, the machine-readable
126 Id. at 5297.
128 Id. at 5336.
130 Id. at 5305.
131 See, e.g., Legislators Against REAL ID, available at, [http://legislatorsagainstrealid.com/
realidisintid.php] (claiming that “The REAL ID Act of 2005 implements an international
biometric ID system that ... will most certainly cause an [identification] theft pandemic”).
requirement does raise security and personal privacy concerns that were addressed
by DHS in the final rule. With respect to security of the information contained on the
bar code, many commentators suggested that DHS prohibit the collection and storage
of the data on the bar codes by third parties, specifically private businesses.132 DHS
responded by noting that although the underlying statute does not provide them with
the legal authority to prohibit such data collection, at least four states — California,
Nebraska, New Hampshire, and Texas — currently have such provisions in place,
and DHS is supportive of additional state efforts in this regard.133
Document Storage. As indicated above, § 202(d) of REAL ID requires
states to employ technology to capture digital images of identity source documents
and retain paper copies of source documents for a minimum of 7 years or digital
images of source documents presented for a minimum of 10 years. Given that these
are statutory requirements, § 37.31 of the final regulations contains the necessary
language directing their implementation. In response to comments concerning the
sensitive nature of storing a potentially vast amount of personally identifiable data,
DHS has indicated that if requested by the applicant and permitted by state data
retention laws, “a State shall record and retain the applicant’s name, date of birth,
certificate numbers, date filed, and issuing agency in lieu of an image or copy of the
applicant’s birth certificate.”134
Physical Security of Motor Vehicle Facilities. REAL ID requires states
to ensure the physical security of locations where cards are produced and the security
of document materials and papers from which drivers’ licenses and identification
cards are produced. In accordance with this statutory requirement, DHS has
promulgated § 37.41, which mandates that the states submit a single security plan
that addresses “[motor vehicle department] facilities involved in the enrollment,
issuance, manufacturing and production of driver’s licenses and identification
cards.”135 Specifically, these regulations call for the security plan to address the
following: (1) physical security of the “[f]acilities used to produce driver’s licenses
and identification cards” as well as the “[s]torage areas for card stock and other
materials used in card production;”136 (2) the security of personally identifiable
information maintained at motor vehicle department locations that are involved in the
enrollment, issuance, manufacturing, and production of drivers’ licenses and
identification cards; (3) document and physical security features of the card,
consistent with the REAL ID regulations; (4) facility and information access controls;
(5) periodic training requirements; (6) emergency and incident response plans; (7)
internal audit controls; and (8) “affirmation that the State possesses both the authority
and the means to produce, revise, expunge, and protect the confidentiality of REAL
ID driver’s licenses or [personal] identification cards issued in support of Federal,
132 73 Fed. Reg. at 5304.
134 Id. at 5309; see also 6 C.F.R. § 37.31(c) (2008).
135 Id. at 5279.
136 Id. at 5337; see also 6 C.F.R. § 37.41(b)(1) (2008).
State, or local criminal justice agencies or similar programs that require special
licensing or identification to safeguard persons or support their official duties.”137
Although the regulations provide requirements for the security plans, several
commentators noted the lack of standards and defined best practices.138 DHS
indicated that it would be working with DOT, AAMVA, and the states to develop
such recommended practices and preferred procedures. Other commentators raised
concerns about the requirements for protection of personally identifiable information,
especially given the mandate that state databases be interconnected.139 DHS
responded that it believed its regulation provided sufficient guidance for the
protection of the data, but indicated that the regulations were flexible enough to
require additional protections without embarking on a new rulemaking.140
DMV Databases. Although the statutory text appears to require the states to
provide electronic access to their databases to all other states, it is unclear whether
this requirement is contained in the final regulations. Section 37.33 entitled “DMV
Databases” requires that the states must maintain a database that contains, at a
minimum, the following elements: (1) all data fields printed on the face of the
driver’s license or personal identification card, individual serial numbers, and the
applicant’s SSN; (2) a record of the full legal name or recorded name without
truncation; (3) all additional data fields included in the machine-readable zone but
not printed on the card; and (4) all motor vehicle drivers’ histories including points141
and/or suspensions. The provision makes no mention of interconnectivity or
access to one state’s database by either other states or the federal government. Other
sections of the final regulations appear to indicate that the state-to-state data
exchange and the document verification requirements are related.142 However, it is
unclear what precisely DHS envisions with respect to interstate exchange of the
information contained in the state databases.143
Background Checks. Section 37.45 of the final regulations governs the
background checks required by the REAL ID statute on all state motor vehicle
employees, including contract employees, who are involved in the “manufacture or
production of REAL ID driver’s licenses and [personal] identification cards, or who
137 Id. at 5338; see also 6 C.F.R. § 37.41(b)(8) (2008).
138 Id. at 5309.
141 Id. at 5337; see also 6 C.F.R. § 37.33 (2008).
142 See id. at 5308 (stating that “DHS has provided a brief overview of the proposed
architecture for data verification and State-to-State data exchange in the sections above.
This architecture will likely build on the existing architecture of AAMVAnet and the
systems design principles of its hosted applications”).
143 Id. (stating that “DHS will work with DOT, AAMVA, and the States to develop a path
forward for both verification systems and State-to-State data exchange, including criteria
DHS will employ to evaluate the adequacy, security, and reliability of such data
have the ability to affect the identity information that appears on the ... cards, or
current employees who will be assigned to such positions.”144 The contents of the
check are to include the following: (1) both a name-based and fingerprint-based
criminal history record check (CHRC) using, at a minimum, the FBI’s National
Crime Information Center (NCIC), the Integrated Automated Fingerprint
Identification (IAFIS) database, and state repository records; (2) an employment-
eligibility-status verification to ensure compliance with 8 U.S.C. § 1324a;145 and (3)
a reference check, unless the employee has been employed for at least two
consecutive years since May 11, 2006.146
Employees and applicants for employment can be disqualified if they have been
convicted of, or found not guilty by reason of insanity, of any offense that is listed as
a felony in 49 C.F.R. § 1572.103(a).147 In addition, a conviction of a crime as listed
at 49 C.F.R. § 1572.103(b)148 if it was within seven years preceding the date of
144 Id. at 5338; see also 6 C.F.R. § 37.45(a) (2008).
145 States are encouraged to use the United States Customs and Immigration Service’s
E-Verify program, but do not appear required to do so. See id.
147 The list of disqualifying offenses includes the following:
(1) espionage or conspiracy to commit espionage; (2) Sedition, or conspiracy to
commit sedition; (3) treason, or conspiracy to commit treason; (4) a federal crime
of terrorism as defined in 18 U.S.C. § 2332b(g), or comparable State law, or
conspiracy to commit such crime; (5) a crime involving a transportation security
incident ... resulting in a significant loss of life, environmental damage,
transportation system disruption, or economic disruption in a particular area, as
defined in 46 U.S.C. § 70101; (6) improper transportation of a hazardous
material under 49 U.S.C. § 5124, or a comparable State law; (7) unlawful
possession, use, sale, distribution, manufacture, purchase, receipt, transfer,
shipping, transporting, import, export, storage of, or dealing in an explosive or
explosive device as defined in 18 U.S.C. §§ 232(5), 841(c) through 841(f), and
844(j); and a destructive device, as defined in 18 U.S.C.§ 921(a)(4) and 26
U.S.C. § 5845(f); (8) murder; (9) making any threat, or maliciously conveying
false information knowing the same to be false, concerning the deliverance,
placement, or detonation of an explosive or other lethal device in or against a
place of public use, a state or government facility, a public transportation system,
or an infrastructure facility; (10) violations of the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. , or a comparable State law,
where one of the predicate acts found by a jury or admitted by the defendant,
consists of one of the crimes listed in paragraph (a) of this section; (11) attempt
to commit the crimes in paragraphs (a)(1) through (a)(4) and; (12) conspiracy or
attempt to commit the crimes in paragraphs (a)(5) through (a)(10).
148 These offenses include the following:
(i) unlawful possession, use, sale, manufacture, purchase, distribution, receipt,
transfer, shipping, transporting, delivery, import, export of, or dealing in a
firearm or other weapon as defined in 18 U.S.C. § 921(a)(3) or 26 U.S.C. § 5
447.21; (ii) extortion; (iii) dishonesty, fraud, or misrepresentation, including
identity fraud and money laundering where the money laundering is related to a
employment or release from incarceration within five years preceding the date of
employment is grounds for disqualification. Finally, it is a violation for the state
motor vehicle department to employ any individual whose employment eligibility
under Section 247A of the Immigration and Nationality Act (8 U.S.C. § 1324a)
cannot be verified.
National Identification Card. Opponents of REAL ID have argued that its149
implementation will create a de facto national identification card. Although these
arguments have taken many forms, they appear to generally consist of three basic
elements. First, opponents argue that the uniform issuance and verification standards
imposed by the federal government will result in turning state workers into
immigration enforcement officials by forcing them to check the citizenship status of
each applicant and will move states away from the purpose of issuing a driver’s
license; namely, ensuring that operators of motor vehicles meet the minimum state
requirements. Second, opponents point to both the machine-readable technology
requirements and state data-sharing proposals as evidence of substantially increased
federal government involvement in the traditionally state-run issuance of
identification documents. Finally, opponents generally note that there appears to be
an unlimited number of potential activities for which REAL ID-compliant licenses
could be required. These could potentially include voting, firearm registration,
employment, and receipt of subsidies and/or other federal or state benefits.
In its discussion of the final rule, DHS specifically indicates that it “does not
intend that REAL ID documents become a de facto national ID and does not support
the creation of a national ID.”150 In addition, DHS notes that it has limited the
potential uses of REAL IDs to the purposes defined in the statute — accessing federal
facilities, boarding federally regulated aircraft, and entering nuclear power plants —
thereby limiting the functionality of the card. Finally, with respect to the database-
crime described in paragraphs (a) or (b) of this section; (iv) bribery;
(v)smuggling; (vi) immigration violations; (vii)distribution of, possession with
intent to distribute, or importation of a controlled substance; (viii) arson. (ix)
kidnaping or hostage taking; (x) rape or aggravated sexual abuse; (xi) assault
with intent to kill; (xii) robbery; (xiii) fraudulent entry into a seaport as described
in 18 U.S.C. § 1036, or a comparable State law; (xiv) violations of the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. , or a
comparable State law, other than the violations listed in paragraph (a)(10) of this
section; (xv)conspiracy or attempt to commit the crimes in this paragraph (b).
149 See, e.g., Electronic Privacy Information Center, “National ID and the REAL ID Act,”
available at, [http://epic.org/privacy/id-cards/] (arguing that REAL ID creates a de facto
national ID card); American Civil Liberties Union, “Real ID Scorecard,” available at,
[http://www.aclu.org/images/general/asset_upload_file162_33700.pdf] (asserting that the
final regulations do not prevent REAL ID from becoming a de facto national ID card).
150 73 Fed. Reg. at 5290.
creation issue, DHS notes that it “does not intend to own or operate a database on all
driver’s license and identification card holders.”151
Although no uniformly accepted definition of a “national identification card”
exists, it appears reasonable to argue that any such definition should include, at a
minimum, that all of the cards be facially identical and that they all be issued by the
same federal governmental entity. Under this standard, it appears difficult to argue
that REAL ID is, or could potentially lead to, a national identification card.
Moreover, as discussed above, participation by either the states or individuals in
REAL ID is voluntary, not mandatory. In addition, the act contains specific
restrictions on DHS’s ability to regulate the design and/or appearance of the card.
Finally, issuance will continue to take place on the state level, not by any entity of the
Issuance of Drivers’ Licenses and Personal Identification Cards to
Non-Citizens and/or Undocumented Persons. By statute, REAL ID
establishes a system of temporary licenses and identification cards that can be issued
by the states to applicants who are not citizens of the United States, but can present152
evidence that they are “lawfully present” in the United States. Accordingly, §
37.21 of the final regulations implements these requirements.153 Thus, non-citizens
in the United States who can demonstrate lawful presence in the United States are
eligible to apply for and receive REAL IDs. However, the cards must be limited in
validity commensurate with the time limit on the individual’s lawful presence in the
United States,154 and must clearly indicate, both on the face and machine-readable
zone, that they are temporary or term-limited.
Recently, some states — Oregon, Washington, and Maryland — have had
attention drawn to the fact that by state law they permit the issuance of drivers’
licenses and personal identification cards to any person, regardless of their
immigration status in the United States.155 Other states such as New York, Michigan,
and California, have indicated that they will either cease or not take legislative action
151 Id. at 5291.
152 See supra note 17 and accompanying text.
153 See 73 Fed. Reg. at 5336; see also 6 C.F.R. § 37.21 (2008).
154 For example, an individual who presents a valid, verifiable visa permitting residence in
the United States for only four years, may only receive a REAL ID that is valid for four
years (even if the state law permits REAL IDs to be issued for longer than four years).
155 Currently, there appear to be nine states that issue drivers’ licenses to undocumented
individuals: Hawaii, Maine, Maryland, Michigan, New Mexico, Oregon, Utah, and
Washington. See, e.g., Michele R. Marcucci, Feds may pre-empt license push, Oakland
Tribune, May 5, 2005, available at, [http://findarticles.com/p/articles/mi_qn4176/
is_20050503/ai_n15826897]. Michigan’s Attorney General on December 27, 2007,
however, issued an opinion which held that only lawful residents of Michigan can receive
a Michigan driver’s license and that lawful presence in the United States is required to be
a Michigan resident under Michigan law. See Michigan Att’y Gen. Op. #7210 (Dec. 27,
Legislation appears to have been introduced in the Michigan legislature to codify this
to permit undocumented persons to receive drivers’ licenses or personal identification
cards — i.e., New York and California.
It should be noted that even with the adoption and implementation of REAL ID,
the decision to issue drivers’ licenses or personal identification cards to persons
regardless of their immigration status remains entirely with the issuing states. In
other words, this choice of whom to issue non-REAL ID-compliant drivers’ licenses
and personal identification cards to does not appear to be altered or preempted. In
fact, the statute clearly contemplates the issuance of documents by states that do not
comply with REAL ID. Should states opt to do so, the law requires only that the
non-compliant documents use a unique color identifier or design to alert officials that
the document is not to be accepted for any official purpose. Thus, it appears that
states may opt to issue multiple documents and still be in compliance with the law.
For example, as reported, New York’s proposal appeared to call for a three-tiered
system, with state departments issuing REAL IDs in compliance with the regulations,
enhanced drivers’ licenses (EDLs)156 to citizens upon request, and non-compliant
drivers’ licenses and personal identification cards to those who either did not want
or were not eligible for the other two types of documents.157 Such a scheme, while
arguably costly and very complicated, nevertheless, appeared to be in full compliance
with REAL ID and all other federal laws.
Relationship of REAL ID to Other Federal Laws and Programs
Western Hemisphere Travel Initiative (WHTI). The Western Hemisphere
Travel Initiative, which can be found at § 7209 of the IRTPA, requires that the
Secretary of Homeland Security, in consultation with the Secretary of State,
expeditiously develop and implement a plan requiring that all travelers, including
citizens of the Untied States, produce a passport, other document, or combination of
documents, “deemed by the Secretary of Homeland Security to be sufficient to denote158
identity and citizenship,” when entering the United States. The use of the
conjunctive “and” generally indicates that both elements, identity and citizenship,159
must be denoted by the documents presented.
Although REAL ID contains increased security requirements for state-issued
drivers’ licenses and personal identification cards, these requirements appear to be
focused on ensuring that the documents accurately reflect identity. REAL ID does
not appear to require that the licenses or identification cards in any way “denote
citizenship” in the United States. In fact, as noted above, REAL ID contains specific
provisions that permit the issuance of licenses and identification cards to non-citizen
156 See infra note 158 and accompanying text.
157 See, e.g., Fernanda Santos, Real ID That Spitzer Now Embraces Has Been Widely
Criticized, NY TIMES, B1 (Oct. 29, 2007), available at, [http://www.nytimes.com/2007/10/
29/nyregion/29real.html?_r=1&oref=slogin] (noting the proposal for a three-tiered licensing
system, “two that would meet new federal security regulations and a third that would be
available to illegal immigrants”).
158 IRTPA, supra note 1 at § 7209(c)(2) (emphasis added).
159 See, e.g., Pueblo of Santa Ana v. Kelly, 932 F. Supp. 1284, 1292 (D. N. Mex. 1996).
residents of the United States who, by producing the required documentation and
having it verified as authentic by the issuing agency, can demonstrate lawful presence
in the country.160 Given the absence of requirements relating to citizenship, it does
not appear that standing alone a driver’s license or personal identification card would
satisfy the statutory standard established by § 7209 for acceptable documents to be
shown upon entrance to the United States. At this time, however, it remains unclear
whether or not a driver’s license or personal identification card, in conjunction with
other presented documents may be considered sufficient to “denote identity and
citizenship” as required by the statute. It should be noted, however, that the use of
state-issued drivers’ licenses or personal identification cards is not included in the
Final WHTI Land/Sea Rule issued by the State Department and DHS on March 27,
Enhanced Driver’s Licenses (EDLs). To implement WHTI, DHS and the
Department of State have pursued the development of alternative identification
documents that satisfy the standards as required by Congress. Most notably, WHTI
requires that the documents shown denote “both identity and citizenship” to be
compliant. At the time WHTI was enacted, the only U.S.-issued document that
satisfied this requirement was a passport. Since WHTI’s adoption, several
jurisdictions have expressed interest in creating and issuing a document known as an
enhanced driver’s license (EDL). EDLs will contain on the face of the license as well
as in the electronic components information relating to the holders citizenship;
therefore, making the document WHTI compliant. Currently, the state of
Washington has a pilot program in place that permits the issuing of EDLs to persons
who provide verifiable proof of citizenship and pay an additional fee when they apply
for issuance or renewal of their Washington driver’s license. According to DHS’s
Final Rule for WHTI Land/Sea Entry, New York, Vermont, and Arizona are also
states that have signed Memoranda of Understanding with DHS for EDL pilot162
programs of their own.
Although EDLs and REAL ID are being implemented by the same agency, there
are two major differences between the programs. First, unlike REAL ID, EDLs
require that the cardholder be a U.S. citizen. Second, EDLs will implement radio-
frequency identification (RFID) technology, whereas REAL IDs are only required to
160 See 2005 Emergency Supplemental, supra note 15 at §202(C)(2)(c).
161 See DHS/DOS, WHTI LAND/SEA FINAL RULE, 135, available at, [http://www.dhs.gov/
xlibrary/assets/whti_landseafinalrule.pdf]. According to the final rule, U.S. citizens must
present a valid unexpired passport upon entering the United States unless one of the
following documents is presented: (1) Passport Card; (2) Merchant Marine Document; (3)
Military Identification; or (4) Trusted Traveler Program Identification Document (includes
NEXUS, FAST, SENTRI). Id. The only other exception applies to citizens who are
passengers on cruise ships that stay entirely within the Western Hemisphere. Those
passengers, according to the rule, may present “government issued photo identification ...
in combination with either an original or a copy of his or her birth certificate, a Consular
Report of Birth Abroad issued by the Department of State, or a Certificate of Naturalization
issued by U.S. Citizenship and Immigration Services for entering the United States ...” Id.
162 Id. at 14.
use a two-dimensional bar code system.163 Thus, although the two programs are
related, they are not interchangeable. It may be possible, however, for an EDL to
also qualify as a REAL ID, provided that the document satisfies the requirements of
both programs. On the other hand, just because individuals have a REAL ID, it does
not automatically follow that they qualify for an EDL, or can use their REAL ID as
part of the WHTI program. One way of thinking about the relationship between
these two programs may be that some EDLs will comply with REAL ID, but not all
REAL IDs will qualify as WHTI-compliant EDLs. In other words, only after a
careful review of the issuing requirements and document contents will one be able
to determine whether a specific state-issued driver’s license or personal identification
card qualifies under neither, both, or only one of the two programs.
163 See supra note 124.