The
Bush administration's REAL ID Act was strongly supported by the conservative
Heritage Foundation and other opponents of illegal immigration. immigrant advocacy groups; human and civil rights organizations, like the
ACLU; Christian advocacy groups, such as the
American Center for Law & Justice (ACLJ); privacy advocacy groups, like the
511 campaign; state-level opposition groups, such as North Carolinians Against REAL ID and government accountability groups in Florida; labor groups, like
AFL–CIO;
People for the American Way; consumer and patient protection groups; some gun rights groups, such as
Gun Owners of America; many state lawmakers, state legislatures, and governors; the
Constitution Party; and the editorial page of
The Wall Street Journal, among others. Highlighting the broad diversity of the coalition opposing Title II of the REAL ID Act, the American Center for Law and Justice (ACLJ), founded by evangelical Christian
Pat Robertson, participated in a joint press conference with the ACLU in 2008. Among the 2008 presidential candidates,
John McCain strongly supported the REAL ID Act, but
Hillary Clinton called for it to be reviewed,
Barack Obama and
Ron Paul flatly opposed it, and
Mike Huckabee called it "a huge mistake." The subsequent
Obama administration opposed it. In 2008, Cindy Southworth, technology project director for the National Network to End Domestic Violence, noted a "conundrum" in the mission "to identify people who are dangerous, such as terrorists, and at the same time, [...] in a way that keeps everyday citizens and victims safe." The
National Coalition Against Domestic Violence also voiced concern about the REAL ID Act.
Adrian Wyllie, the then-chair of the
Libertarian Party of Florida, drove without carrying a
driver license in 2011 in protest of the REAL ID Act. After being ticketed, Wyllie argued in court that Florida's identification laws violated his privacy rights; a judge rejected this claim.
Congress The House of Representatives approved the original REAL ID Act, H.R.418, on February 10, 2005, by a vote of 261–161. At the insistence of the bill's sponsor and then
House Judiciary Committee Chair
Jim Sensenbrenner, the REAL ID Act was subsequently attached by the House Republican leadership as a
rider to H.R.1268, a bill dealing with emergency appropriations for the
Iraq War and with the
2004 tsunami relief funding, which was widely regarded as a
must pass bill. The Senate passed H.R.1268 on April 21, 2005, without the REAL ID Act. However, the REAL ID Act was reinserted in the conference report on H.R.1268, which was then passed by the House on May 5, 2005, by a 368–58 vote and unanimously by the Senate on May 10, 2005. A May 3, 2005, statement by the
American Immigration Lawyers Association said: "Because Congress held no hearings or meaningful debate on the legislation and amended it to a must-pass spending bill, the REAL ID Act did not receive the scrutiny necessary for most measures, and most certainly not the level required for a measure of this importance and impact. Consistent with the lack of debate and discussion, conference negotiations also were held behind closed doors, with Democrats prevented from participating." On February 28, 2007, Senator
Daniel Akaka (
D-
HI) introduced the Identification Security Enhancement Act of 2007 to repeal the REAL ID Act and restore the equivalent provisions of the
Intelligence Reform and Terrorism Prevention Act, which provided more regulatory flexibility with state participation. Seven Democratic and Republican senators cosponsored the bill. Committee hearings were held, but the bill did not advance. A similar bill was introduced on February 16, 2007, by Representative
Tom Allen (D-
ME), with 41 cosponsors, all Democrats. This bill did not advance either. A more limited bill, introduced on February 13, 2007, by Senator
Susan Collins (
R-ME), with four cosponsors, would have extended the deadlines for states to comply with the REAL ID Act. On June 15, 2009, Senator Daniel Akaka introduced the
PASS ID Act, which would replace the REAL ID Act with a similar law without some of the requirements that were considered excessive, such as the obligation to verify documents with the issuing authority and shared databases. The bill passed the
Committee on Homeland Security and Governmental Affairs but did not advance further.
State legislatures Many state legislatures strongly opposed the REAL ID Act, before the states eventually complied with it years later. On February 16, 2007, the
Utah legislature unanimously passed a resolution opposing the REAL ID Act. The resolution stated that REAL ID was "in opposition to the Jeffersonian principles of individual liberty, free markets, and limited government", and that "the use of identification-based security cannot be justified as part of a 'layered' security system if the costs of the identification 'layer'—in dollars, lost privacy, and lost liberty—are greater than the security identification provides".
Alaska,
Arizona,
Arkansas,
Colorado,
Georgia,
Hawaii,
Idaho,
Illinois,
Louisiana,
Michigan,
Minnesota,
Missouri,
Montana,
Nebraska,
Nevada,
New Hampshire,
North Dakota,
Oklahoma,
Pennsylvania,
South Carolina,
Tennessee,
Virginia, and
Washington joined
Maine and
Utah in passing legislation opposing the REAL ID Act. Similar resolutions were introduced in the
District of Columbia,
Kentucky,
Louisiana,
Maryland,
Massachusetts,
New York,
Ohio,
Oregon,
Rhode Island,
Texas,
Vermont,
West Virginia,
Wisconsin, and
Wyoming. On April 16, 2009, the
Missouri House of Representatives passed a bill prohibiting the state from complying with the REAL ID Act, by a vote of 83–69 and 3 present. On May 13, 2009, the
Missouri Senate unanimously passed the bill 43–0. Missouri Governor
Jay Nixon signed this bill into law on July 13, 2009. This law was later repealed in 2017. Alaska also repealed its anti-Real-ID law in 2017. In the 2012 Florida Legislative Session, the anti-Real-ID bill HB 109 and its Senate companion S 220 were introduced. Named the Florida Driver's License Citizen Protection Act, it would require discontinuation of several of the federally mandated provisions of the REAL ID Act and destruction of copies of U.S. citizens' documents from the government database. That bill died in the Transportation and Highway Safety Subcommittee on March 9, 2012.
Constitutionality Some critics claimed that the REAL ID Act violated the
Tenth Amendment to the United States Constitution as a federal legislation in an area that, under the terms of the Tenth Amendment, was the province of the states.
Anthony Romero, the executive director of the
ACLU, stated: "REAL ID is an unfunded mandate that violates the Constitution's 10th Amendment on state powers, destroys states'
dual sovereignty and consolidates every American's private information, leaving all of us far more vulnerable to identity thieves". Former Republican Representative
Bob Barr wrote in a February 2008 article: "A person not possessing a REAL ID Act-compliant identification card could not enter any
federal building, or an office of his or her congressman or senator or the
U.S. Capitol. This effectively denies that person their fundamental
rights to assembly and to
petition the government as guaranteed in the
First Amendment". The DHS's final rule regarding the implementation of the REAL ID Act discussed several constitutional concerns raised by the commenters on the proposed version of this rule. The DHS explicitly rejected the assertion that the implementation of the REAL ID Act would lead to violations of the citizens' individual constitutional rights. Concerning the Tenth Amendment argument about the violation of states' constitutional rights, the DHS rule acknowledged that these concerns had been raised by several individual commenters and in the comments by some states. The DHS rule did not attempt to rebuff the Tenth Amendment argument directly, but said that the DHS was acting in accordance with the authority granted to it by the REAL ID Act and that DHS had been and would be working closely with the states on the implementation of the REAL ID Act. On March 17, 2008, the attorneys filed a petition for a
writ of
certiorari with the
U.S. Supreme Court to hear their "constitutional challenge to the secretary's decision waiving nineteen federal laws, and all state and local legal requirements related to them, in connection with the construction of a barrier along a portion of the border with Mexico". They questioned whether the preclusion of judicial review amounted to an unconstitutional delegation of legislative power and whether the "grant of waiver authority violates Article I's requirement that a duly-enacted law may be repealed only by legislation approved by both Houses of Congress and presented to the President". On April 17, 2008, numerous amicus briefs "supporting the petition were filed on behalf of 14 members of Congress, a diverse coalition of conservation, religious and Native American organizations, and 28 law professors and constitutional scholars". The Supreme Court denied the petition on June 23, 2008.
National ID card There was disagreement about whether the REAL ID Act instituted a "national identification card" system. The new law only set forth national standards, but left the issuance of cards and the maintenance of databases in state hands; therefore, the Department of Homeland Security claimed that it was not a "national ID" system. Websites such as no2realid.org, unrealid.com, and realnightmare.org argued that this was a trivial distinction, and that the new cards were in fact national
ID cards, due to the uniform national standards, the linked databases created by
AAMVA, and the requirement of such identification for domestic air travel. Many advocacy groups and individual opponents of the REAL ID Act believed that having a REAL ID-compliant identification might become a requirement for various basic tasks. A January 2008 statement by the ACLU of Maryland said: "The law places no limits on potential required uses for Real IDs. In time, Real IDs could be required to vote, collect a Social Security check, access Medicaid, open a bank account, go to an
Orioles game, or buy a gun. The private sector could begin mandating a REAL ID to perform countless commercial and financial activities, such as renting a DVD or buying car insurance. REAL ID cards would become a necessity, making them de facto national IDs". However, government-issued identification was already required to perform some of these tasks; for example, two forms of identification – usually a driver license, passport, or Social Security card – were required by the
Patriot Act in order to open a bank account.
Privacy Many privacy rights advocates charged that by creating a national system electronically storing vast amounts of detailed personal data about individuals, the REAL ID Act increased the chance of such data being stolen and thus raised the risk of identity theft. The Bush administration, in the DHS final rule regarding the REAL ID Act implementation, countered that the security precautions regarding handling sensitive personal data and hiring workers for this task, which were specified in the REAL ID Act and in the rule, provided sufficient protections against unauthorized use and theft of such personal data. Supporters of the REAL ID Act, such as the conservative think-tank
Heritage Foundation, dismissed this criticism under the grounds that states would be permitted by law to share data only when validating someone's identity. The Data Privacy and Integrity Advisory Committee, which was established to advise the
Department of Homeland Security on privacy-related issues, released a statement regarding the Department of Homeland Security's proposed rules for the standardization of state driver licenses on May 7, 2007. The committee stated that "Given that these issues have not received adequate consideration, the Committee feels it is important that the following comments do not constitute an endorsement of REAL ID or the regulations as workable or appropriate", and "The issues pose serious risks to an individual's privacy and, without amelioration, could undermine the stated goals of the REAL ID Act".
Gender The REAL ID Act requires that states and territories include an individual's gender on each driver license and identification card issued. The requirements for changing the recorded gender varied by jurisdiction, from merely a personal request to additional documentation such as a court order or proof of surgery. Some scholars criticized the inclusion of gender markers in identification documents, pointing to the ineffectiveness of gender in confirming a person's identity or due to privacy concerns of
transgender individuals.
Asylum and deportation Many immigrant and civil rights advocates felt that the changes related to evidentiary standards and the immigration officers' discretion in asylum cases, contained in the REAL ID Act, would prevent many legitimate asylum seekers from obtaining asylum. For example, scholars pointed to how the REAL ID Act placed more emphasis on applicant account discrepancies to determine asylum seekers as "incredible" and discretion on additional corroboration requirements, which discounted potential trauma-related psychological and other barriers related to persecution that might affect testimony accounts. Additionally, a 2005 article in
LCCR-sponsored
Civil Rights Monitor stated, "The bill also contained changes to asylum standards, which according to LCCR, would prevent many legitimate asylum seekers from obtaining safe haven in the United States. These changes gave immigration officials broad discretion to demand certain evidence to support an asylum claim, with little regard to whether the evidence can realistically be obtained; as well as the discretion to deny claims based on such subjective factors as 'demeanor'. Critics said the reason for putting such asylum restrictions into what was being sold as an anti-terrorism bill was unclear, given that suspected terrorists are already barred from obtaining asylum or any other immigration benefit". Similarly, some immigration and human rights advocacy groups maintained that the REAL ID Act provided an overly broad definition of "terrorist activity" that would prevent some deserving categories of applicants from gaining asylum or refugee status in the United States. A November 2007 report by
Human Rights Watch raised this criticism specifically in relation to former
child soldiers who had been forcibly and illegally recruited to participate in an armed group.
Environment In 2020, the section of the REAL ID Act waiving laws that could interfere with the construction of the
border barrier negatively impacted the natural and cultural environment of the border area. One example was at
Quitobaquito Springs in the
Organ Pipe Cactus National Monument in
Arizona, one of the only reliable above-ground water sources in the
Sonoran Desert and home to the endangered
Sonoyta pupfish and
Sonora mud turtle. The spring and surrounding lands are also sacred to the
Hia C-eḍ Oʼodham and
Tohono Oʼodham peoples. Due to the construction of the border barrier, the flow of water declined precipitously from March 2020, and threatened the cultural landscape as well as the two endangered species, along with other desert animals and plants that relied on the water. ==See also==