Department of Homeland Security Blinks, Extensions Given

A REAL ID showdown has been averted for now and driver licenses from all 50 states will be accepted on May 11^th (the implementation date in the REAL ID Act). All four of the holdout States that refused to apply for an extension to REAL ID compliance were given extensions anyway. The Department of Homeland Security gave these extensions despite earlier declarations that only states that commit to implementing the REAL ID Act would get them. Anti-REAL ID advocates view this as further evidence that DHS is struggling to maintain support for REAL ID and that DHS has blinked.

The four states that got the unasked-for extensions are Maine, Montana, New Hampshire, and South Carolina. Each of the states had sent letters to DHS making explicit their refusal to comply with REAL ID. California, though it had applied for an extension, also sent a letter making clear that their extension request should not be viewed as a commitment to REAL ID.

Montana was given an unasked-for extension first, about two weeks before the March 31^st application deadline. Montana sent DHS a letter asking that Montana not be penalized, still not requesting an extension. DHS chose to interpret the letter as a request for an extension anyway. Montana Governor Brian Schweitzer said, "I sent them a horse and if they want to call it a zebra, that's up to them." He also said, "They can call it whatever they want, and it wasn't a love letter."

New Hampshire became the second state to get an unasked-for extension after sending a letter similar to Montana’s. An earlier letter from New Hampshire was rejected by DHS, but at that time DHS was still adhering to its tough stance demanding a commitment to compliance.

DHS demonstrated further softening by giving a last-minute extension to South Carolina, even though the state sent a defiant letter rejecting REAL ID. Maine's extension came two days after the March 31^st application deadline, and after DHS issued an ultimatum and a rejection of Maine's first letter, also defiant. Maine's governor agreed to propose legislation requiring proof of citizenship for driver licenses in a second letter, which DHS found sufficient to grant the extension.

An article in yesterday’s Washington Post said that the Senate Judiciary Committee criticized DHS Secretary Michael Chertoff for “pressuring reluctant states to adopt new federally approved driver's licenses,” with Senator Leahy going so far as to describe it as "bullying."

Now that the May 11^th compliance deadline is a moot point (since all 50 states have been granted extensions), the next major deadline is December 31, 2009. By that date, states are supposed to have come into material compliance with REAL ID.

REAL ID Heating Up, Deadline Looming

A mini-showdown over REAL ID is looming on the horizon. States have until March 31^st to apply for an extension or else driver licenses and IDs from those states will not be accepted for air travel or entering federal facilities beginning May 11, 2008. Montana, New Hampshire, Maine, and South Carolina have said they will not apply for the extension, which is where the showdown comes into play.

With the deadline only five days away at this writing, we are starting to see some unusual twists and turns…

Montana has been leading the resistance by vocally proclaiming it will not apply for an extension, and urging other states to follow its actions. Yet, on Friday, March 21^st, the Department of Homeland Security (DHS) gave Montana an extension, even though Montana had not applied for one and has insisted it will not follow the law. A few days before DHS gave Montana the non-requested extension, a bipartisan group of U.S. Senators had asked for a blanket exemption to the May 11^th deadline for all 50 states. DHS Secretary Michael Chertoff denied the request citing that he is legally bound to that deadline by the REAL ID law.

New Hampshire requested an exemption, but DHS regarded it as legally unacceptable. South Carolina is considering suing over REAL ID, and today it was reported that Maine’s governor has requested REAL ID leniency, similar to what Montana was given.

California had previously requested and been granted an extension, but is now backing off of its commitment to REAL ID and is considering legislation opposing REAL ID. Louisiana is one of several other states considering similar bills. A total of seventeen states have already passed legislation.

DHS has been adamant in earlier statements that the May 11^th deadline will be enforced. However, recent DHS actions have been characterized as “blinking” by both Montana Governor Brian Schweitzer and the American Civil Liberties Union.

The looming deadline may be the impetus for Senator Lamar Alexander’s (R. – Tenn.) decision to propose legislation next week that would stop REAL ID from going forward. Sen. Alexander could have the leverage necessary to push the legislation through where other anti-REAL ID bills have been stalled in committee.

Opponents to the REAL ID Act cite privacy, infringement of state rights, and enormous financial costs, with no discernable anti-terrorism benefit, as the basis for their rejection.

Understanding REAL ID

You’ve been hearing about REAL ID in the news and from us, at NCTE. But perhaps you are not quite clear what REAL ID is all about? In general, that is…not just the ways that transgender people are affected by REAL ID.

Fortunately, CNET News.com has published a four-part series of articles that provides background on the REAL ID Act and how the upcoming deadlines can impact people’s everyday lives.

CNET News.com does not cover the transgender angle of REAL ID, of course. However, the ways that all Americans will be affected certainly includes transgender people. I am sure that most transgender people will be able to imagine how these general difficulties would translate into even greater hardships for our particular community.

Four-part series: "REAL ID vs the states"

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CNET News.com has also made available an easy-to-read version of the relevant section of the REAL ID Act. For those who want to read the entire text and history of the bill, click here.

national legislation to repeal REAL ID Act

We mentioned two pieces of legislation in our recent review and analysis of the Department of Homeland Security final rules for implementing the REAL ID Act. The following is a brief explanation of what those bills are:

The two bills, S. 717 and H.R. 1117 (U.S. Senate and U.S. House bills, respectively) are nearly identical. They both call for the repeal of Title II* of the REAL ID Act and to reinstitute section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004, a much better law for making secure driver licenses and IDs, which includes privacy and civil liberty protections.

The Library of Congress Thomas website has the complete text of both bills, lists co-sponsors of the legislation, and provides the current status of the bills. Click on these links to go the appropriate sections of Thomas: S. 717 & H.R. 1117

If you would like to contact your Senators about S. 717, you can find their contact info here.

If you would like to contact your Representative about H.R. 1117, you can find their contact info here.


* Title II of the REAL ID Act is the section that pertains to driver licenses.