The Department of Homeland Security (DHS) has extended the enforcement deadline for REAL ID. Again.

This time, coronavirus serves as the excuse, but this is just of many extensions, delays and waivers that litter the history of this ill-conceived federal ID system.

The DHS announced it will extend the enforcement deadline another full year to Oct. 1, 2021.

“The federal, state and local response to the spread of the coronavirus here in the United States necessitates a delay in this deadline,” DHS acting secretary Chad Wolf said in a statement.

Practically speaking it means that people with non-compliant driver licenses or ID cards will still be able to use them at airport TSA checkpoints for another year.

The federal government has used the threat of turning states into virtual no-fly zones to compel the adoption of REAL ID. But even with badgering and threats, the feds have found it difficult to coerce states into compliance.

Congress passed the REAL ID Act way back in 2005 and Pres. G.W. Bush signed it into law, with an implementation date of 2008.

The act essentially mandates a national ID system and puts the onus of implementation on each state.

Things didn’t go smoothly after the passage of REAL ID. States rebelled for several reasons, including privacy concerns and the fact that Congress didn’t provide any funding for the mandates it expects states to implement. Many states simply chose not to act. Missouri, Maine, Oklahoma and others took things a step further, passing laws expressly prohibiting compliance with the national ID standards.

By any conceivable measure, the implementation of REAL ID has been an abject failure. According to CNN, as of February 2020, only about 35 percent of U.S. IDs were compliant with the law.

Even before the outbreak, it was unlikely that all states would meet the deadline. Last month, acting Homeland Security Secretary Chad Wolf told lawmakers that the prospect of all states being able to issue their constituents a REAL ID by October 2020 was “probably fairly small.”

It’s doubtful the federal government was going to risk the political fallout it would have faced had it effectively banned millions of people from air travel when that October 2020 deadline hit. Coronavirus offered a great excuse to grant an extension it was almost certainly going to grant anyway.

After all, granting extensions has been the fed’s modus operandi from the beginning.

Under the law, all states were supposed to be in compliance by 2008. But the federal government found coercing unwilling states wasn’t as easy as anticipated. Instead of forcing the issue, the feds issued waiver after waiver.

“There is an impasse,” Edward Hasbrouck a privacy advocate with the Identity Project told the New York Times in December 2015. “There has been a standoff for more than a decade now. The feds have limited powers to coerce the states in this case.”

Ten years after passage more than half the states in the Union still not complied with REAL ID. Of the 28 not in compliance, 21 had extension waivers until October 2016.

In 2016, the feds ratcheted up their bullying tactics, specifically threatening to stop accepting noncompliant licenses at TSA security checkpoints. This would effectively ground travelers from states that refuse to comply with the unconstitutional national ID scheme. On Oct. 13, 2016, the Department of Homeland Security (DHS) sent letters to five states denying their request for time extensions to bring their driver’s licenses in compliance with REAL ID. At the time, the DHS set a 2018 deadline, but still allowed for individual state extensions.

Instead of standing their ground, politicians began to cave. Idaho reversed its ban on Real ID implementation in 2016. Oklahoma followed suit the next year. At least six other states reversed course during this time period. Missouri lifted its ban on Real ID in 2018.

With states clamoring to get compliant, the enforcement deadline was ultimately extended to October 2020.

And now to October 2021.

The federal government’s struggle to implement REAL ID reveals a dirty little secret – the feds can’t do anything when states refuse to cooperate. This was the blueprint James Madison gave in Federalist #46 to resist “unwarrantable” or even unpopular federal acts. He said that a “refusal to cooperate with officers of the union” would create impediments and obstructions that would stymie federal actions. This has certainly proved true when it comes to REAL ID.

But we also see another less pleasant reality in this saga. We can’t trust politicians to hold the line. State legislators and governors held the feds at bay for over a decade. It wasn’t until they started to cave that REAL ID gained any momentum toward implementation. And even then, the federal government has still faced a rocky road. Ultimately, it takes public action to stop government overreach. We can’t just turn our heads and hope elected officials will do their job. That only happens when we keep the pressure on.

Mike Maharrey

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