REAL ID Act 0f 2005

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The REAL ID Act of 2005 is Division B of an act of the United States Congress entitled Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005)[1]. This controversial legislation is intended to deter terrorism by:

	Establishing the national standards for state-issued driver's licenses and non-driver's identification cards;
	Waiving laws that interfere with construction of physical barriers at the borders;
	Updating and tightening the laws on application for asylum and deportation of aliens for terrorist activity;
	Introducing rules covering "delivery bonds" (rather like bail bonds, but for aliens that have been released pending hearings);
	Funding some reports and pilot projects related to border security; and
	Changing visa limits for temporary workers, nurses, and Australians.

[hide]

1 Current status

2 Minimum nationwide standards for state driver's licenses or ID cards, employment, and banking

	2.1 Data requirements
	2.2 Documentation required before issuing a license or ID card
	2.3 Linking of license and ID card databases

3 National ID controversy

4 Immigration

5 State Adoption

6 Waiving laws that interfere with construction of border barriers

6.1 Judicial review controversy

7 Application for asylum; deportation of aliens for terrorist activity

7.1 Asylum and deportation controversy

8 Delivery bonds

9 Miscellaneous provisions

10 References

11 See Also

Current status

The Real ID act started off as H.R. 418, which passed the House (261-161-11) and went stagnant. It was then attached as a rider on a military spending bill (H.R. 1268) by Congressman Jim Sensenbrenner (R) of Wisconsin (the author) and was voted upon (100-0) . It was signed into public law (109-13) on May 11, 2005.

The THOMAS bill summaries for both H.R. 418 and H.R. 1268 show voting records and show who are supporters and proponents of this act and why they do or do not support it. It should be noted that cosponsors of the original legislation to which REAL ID was attached do not necessarily support this bill.

On March 2, 2007 it was announced that enforcement of the Real ID Act of 2005 has been postponed for two years. This means that the provisions of the bill will be delayed from going into effect until the end of 2009.

Minimum nationwide standards for state driver's licenses or ID cards, employment, and banking

In the United States, driver's licenses are issued by the states, not by the federal government. States also issue voluntary identification cards for non-drivers. States set the rules for what data is on the card and what documents must be provided in order to obtain one. States also maintain databases of licensed drivers and ID-card holders.

Driver's License Implications

The REAL ID Act's implications for driver's licenses and ID-cards is detailed in Title II of the Act. Title II of REAL ID—“Improved Security for Driver’s License’ and Personal Identification Cards”—repeals the provisions of a December 2004 law that established a cooperative state-federal process to create federal standards for driver’s licenses and instead directly imposes prescriptive federal driver’s license standards.

The NCSL's REAL ID Act of 2005 Driver's License Summary [2] details the following provisions of the Act's driver's license title:

*Repeal of 9/11 Commission Implementation Act DL/ID Provisions
*Minimum Standards for Federal Use
*DL/ID Document Standards
*Minimum DL/ID Issuance Standards
*Verification of Documents
*Immigration Requirements
*Security and Fraud Prevention Standards
*Data Retention and Storage
*Linking of Databases
*Grants to States
*Authority

After May 11, 2008, "a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a state to any person unless the state is meeting the requirements" specified in the Real ID Act. States remain free to also issue non-complying licenses and ID's, so long as these have a unique design and a clear statement that they cannot be accepted for any Federal identification purpose. The federal Transportation Security Administration is responsible for security check-in at airports, so bearers of non-compliant documents would no longer be able to travel on common carrier aircraft.

In addition, the federal Social Security Administration, (42 USC section 666 (28)), requires the States to maintain a new hire directory. Employers would no longer be able to accept, or ultimately hire, bearers of non-compliant documents for employment.

Also, financial institutions are required to assist the Federal Parent Locator Service, (42 USC 666 (17)). Financial institutions would require compliant documents from all customers. Bearers of non-compliant documents would be denied financial or banking services.

Additional federal and state agencies who will require compliant documents are listed, in part, in 42 USC 666 (United States Code Title 42 Section 666).

The national license/ID standards cover:

	What data must be included on the card;
	What documentation must be presented before a card can be issued; and
	How the states must share their databases.

Strictly speaking, many of these requirements are not new. They replace similar language in Section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458), which had not yet gone into effect before being repealed by the Real ID Act.

Data requirements

Each card must include, at a minimum, the person's full legal name, signature, date of birth, gender, driver's license or identification card number. It also includes a photograph of the person's face and the address of principal residence. It is required to have physical security features designed to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes.

It will use common machine-readable technology, with defined minimum data elements (the details of which are not spelled out, but left to the Secretary of Homeland Security, in consultation with the Secretary of Transportation and the states, to regulate).

Documentation required before issuing a license or ID card

Before a card can be issued, the applicant must provide the following documentation[3]:

	A photo ID, or a non-photo ID that includes full legal name and birthdate.
	Documentation of birthdate.
	Documentation of legal status and Social Security number
	Documentation showing name and principal residence address.

Digital images of each identity document will be stored in each state DMV database.

Linking of license and ID card databases

Each state must agree to share its motor vehicle database with all other states. This database must include, at a minimum, all the data printed on the state drivers' licenses and ID cards, plus drivers' histories (including motor vehicle violations, suspensions, and points on licenses). Any state that does not link its database, containing records on all drivers and ID holders, to the database of the other states loses its federal funding.

Original legislation contained one of the most controversial elements which did not make it into the final legislation that was signed into law. It would have required states to sign a new compact known as the Driver License Agreement (DLA) as written by the Joint Driver's License Compact/ Non-Resident Violators Compact Executive Board with the support of AAMVA which would have required states to give reciprocity to those provinces and territories in Canada and those states in Mexico that joined the DLA and complied with its provisions. As a part of the DLA, states would be required to network their databases with these provinces, territories and Mexican states. The databases that are accessible would include sensitive information such as Social Security numbers, home addresses and other information. The foreign states and provinces are not required to abide with the Drivers Privacy Protection Act (DPPA) and are free to access and use the sensitive information as they see fit.

Traffic violations would be required to be sent to the licensing jurisdiction and be recorded. The licensing jurisdiction would be required to act on the violation according to its own laws such as assigning points and insurance surcharges to the driver not only for violations reported from DLA members but also from non-DLA members as well. The DLA requires member states to treat non-DLA states as if they are DLA members concerning their drivers.

Since foreign countries are included, there are no procedures to deal with due process issues such as a U.S. driver getting cited for a violation in a foreign country. Such due process issues include nations, such as Mexico, which do not subscribe to the concept of innocent until proven guilty. Although not discussed, other countries could sign on to the DLA at a later time, such as the European Union countries.

National ID controversy

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There is disagreement about whether the Real ID Act institutes a "national identification card" system. The new law only sets forth national standards, but leaves the issuance of cards and the maintenance of databases in state hands; therefore, it is not a true "national ID" system, and may even forestall the arrival of national ID.

Others argue that this is a trivial distinction, and that the new cards are in fact national ID cards, thanks to the uniform national standards created by the AAMVA and (especially) the linked databases.

Arguments for and against identity cards are covered in detail under identity document.

Immigration

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Also, many^[Who?] have pointed out that the 9/11 terrorists all had proper identification. However, there was little to no verification of the terrorists' immigration status made when they obtained or renewed those licenses.

Additionally, some say that it is unwise to restrict illegal immigrants from obtaining driver's licenses, as this may keep them from obtaining liability insurance. Others say that the new law isn't restrictive enough, because it allows states to offer "not for federal ID" licenses that might be obtained by illegal immigrants. In fact, several states (e.g., Utah and Tennessee) have already started issuing such "driving privileges certificates/cards" in lieu of regular drivers licenses. This practice, which is allowed under REAL ID, allows applicants who are unable to prove their legal status in the US to be tested and licensed to drive and obtain liability insurance using a special license which is otherwise marked as not being valid for the purpose of identification.

State Adoption

See also: National identification number

The Real ID Act is scheduled to take effect on May 11, 2008, three years after the law passed.

As of April 26, 2006, a bill in the New Hampshire Senate that would keep NH out of the REAL ID Act has passed committee. The bill had previously passed the NH House.

On January 25, 2007, a Resolution passed overwhelmingly in the Maine Legislature that refuses implementation of the Real ID Act in that State, and demands Congress repeal the law. Many Maine lawmakers believe the law does more harm than good, that it would be a bureaucratic nightmare to enforce, is threatening to individual privacy, makes citizens increasingly vulnerable to ID theft, and would cost Maine taxpayers at least $185 million in five years because of the massive unfunded federal mandates on all the states.

The Resolution vote in the Maine House was 137-4 and in the Maine Senate unanimously, 34-0.

The states of Idaho, Arkansas, and Washington have joined Maine in passing legislation opposing Real ID.[4]

Similar bills are pending in Georgia, Massachusetts, Montana, and South Carolina^[1]. Other states have moved aggressively to upgrade their IDs since 9/11, and still others have staked decidedly pro-Real ID positions, such as Texas and California. In a press conference announcing the new regulations, Department of Homeland Security Secretary Michael Chertoff cited California, Alabama and North Dakota as examples of states that had made progress in complying with Real ID.

Waiving laws that interfere with construction of border barriers

An earlier law (Section 102 of Public Law 104-208, which is now part of 8 USC 1103) provided for improvements to physical barriers at the borders of the United States.

Subsection (a) of this law reads as follows: "The Attorney General, in consultation with the Commissioner of Immigration and Naturalization, shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States."

Subsection (b) orders the Attorney General to commence work on specified improvements to a 14-mile section of the existing border fence near San Diego, and allocates funds for the project.

Subsection (c) provides for waivers of laws that interfere with the work described in subsections (a) and (b). Prior to the Real ID Act, this subsection allowed waivers of only two specific federal environmental laws.

The Real ID Act amends the language of subsection (c) to make the following changes:

	Allows waivers of any and all laws "necessary to ensure expeditious construction of the barriers and roads under this section."
	Gives this waiver authority to the Secretary of Homeland Security (rather than the Attorney General). Waivers are made at his sole discretion.
	Restricts court review of waiver decisions: "The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph." Claims are barred unless filed within 60 days, and cases may be appealed "only upon petition for a writ of certiorari to the Supreme Court".

These waivers apply to barrier construction anywhere on the United States border (not just at San Diego, as some sources have erroneously reported).

Judicial review controversy

A previous version of the Real ID Act (H.R. 418) would have prohibited any judicial review of Homeland Security law waivers for barrier construction. Critics maintained that this would elevate the Secretary of Homeland Security above the law, and this language was changed in the final version (H.R. 1268).

But even the limited restrictions on judicial review remain controversial. Supporters of the Real ID Act see a need to restrain judicial activism so that needed barriers can be built. Opponents feel that the restrictions on judicial review may exceed the authority Congress has to regulate the courts (as spelled out in Article Three of the United States Constitution), and violate the principle of separation of powers.

Application for asylum; deportation of aliens for terrorist activity

The Real ID Act introduces stricter laws governing applications for asylum and deportation of aliens for terrorist activity. However, at the same time, it makes two minor changes to U.S. immigration law:

Elimination of the 10,000 annual limit for previously-approved asylees to adjust to permanent legal residence. This had been urged for years because the average asylee had a 17-year wait before he would be able to achieve legal resident status.

Usage of 50,000 unused employment-based visas from 2003. This was a compromise between proponents who had earlier tried to include all employment visas which went unused between 2001 and 2004, and immigration restrictionists.

The deportation of aliens for terrorist activities is governed by the following provisions.

Section 212(a)(3)(B): Terrorist Activities The INA defines "terrorist activity" to mean any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:

(I) The Hijacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).

(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.

(III) A violent attack upon an internationally protected person (as defined in Section 1116(b)(4) of Title 18, United States Code) or upon the liberty of such a person.

(IV) An assassination.

(V) The use of any:

	(a) biological agent, chemical agent, or nuclear weapon or device.
	(b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.

(VI) A threat, attempt, or conspiracy to do any of the foregoing.

Other pertinent portions of Section 212(a)(3)(B) are set forth below:

"Engage in Terrorist Activity" Defined

As used in this chapter (Chapter 8 of the INA), the term, "engage in terrorist activity" means in an individual capacity or as a member of an organization:

to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;

to prepare or plan a terrorist activity;

to gather information on potential targets for terrorist activity;

to solicit funds or other things of value for:

	(aa) a terrorist activity;
	(bb) a terrorist organization described in Clause (vi)(I) or (vi)(II);
	(cc) a terrorist organization described in Clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity;

to solicit any individual:

	(aa) to engage in conduce otherwise described in this clause;
	(bb) for membership in terrorist organization described in Clause (vi)(I) or (vi)(II); or
	(cc) for membership in a terrorist organization described in Clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization’s terrorist activity; or

to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training:

	(aa) for the commission of a terrorist activity;
	(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;
	(cc) to a terrorist organization described in Clause (vi)(I) or (vi)(II); or
	(dd) to a terrorist organization described in Clause (vi)(III), unless the actor can demonstrate that he did not know, and should not reasonably have known, that the act would further the organization’s terrorist activity.

This clause shall not apply to any material support the alien afforded to an organization or individual that has committed terrorist activity, if the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, concludes in his sole unreviewable discretion, that that this clause should not apply."

"Representative" Defined

As used in this paragraph, the term, "representative" includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.

"Terrorist Organization" Defined As used in Clause (i)(VI) and Clause (iv), the term ‘terrorist organization’ means an organization:

	designated under Section 219 [8 U.S.C. § 1189];
	otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General, as a terrorist organization, after finding that the organization engages in the activities described in Subclause (I), (II), or (III) of Clause (iv), or that the organization provides material support to further terrorist activity; or
	that is a group of two or more individuals, whether organized or not, which engages in the activities described in Subclause (I), (II), or (III) of Clause (iv).

Section 140(d)(2) of the "Foreign Relations Authorization Act", Fiscal Years 1988 and 1989 defines "terrorism" as "premeditated, politically motivated violence, perpetrated against noncombatant targets by subnational groups or clandestine agents."

Asylum and deportation controversy

Many immigrant advocates feel that these new rules put unreasonable burdens on aliens trying to prove they are escaping from persecution, and unnecessarily broaden the definition of terrorist activity such that many will suffer "guilt by association" even if they don't support terrorism

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Delivery bonds

The Real ID Act introduces complex rules covering "delivery bonds." These resemble bail bonds, but are to be required for aliens that have been released pending hearings.

Miscellaneous provisions

The remaining sections of the Real ID Act allocate funding for some reports and pilot projects related to border security, and change visa limits for temporary workers, nurses, and Australians.

Under the REAL ID Act nationals of Australia are eligible to receive a special E-3 visa. This provision was the result of negotiations between the two countries that also led to the Australia-United States Free Trade Agreement which came into force on January 1, 2005.

References

Smith, Tim. "REAL ID may be real headache", GreenvilleOnline, March 25, 2007. Accessed March 26, 2007