Real ID and Reality

States can fume about the federal identification law -- or they can find ways to cope with it.
July 1, 2008 AT 3:00 AM
By Jonathan Walters  |  Senior Editor
A Senior Editor of Governing, Jonathan has been covering state and local public policy and administration for more than 30 years.

The deadline for implementing REAL ID has been extended to 2014, and so the fight between states and the Department of Homeland Security over a federally approved, state-issued identification card is cooling off, at least for the moment.

That doesn't mean states are happy about things, or that they all have backed off expressing their displeasure over what Washington is imposing on them. The sniff of rebellion still hangs in the air. At least half a dozen legislatures voted this spring to opt out of REAL ID. Montana Governor Brian Schweitzer sounded a Boston Tea Party note, declaring his state's obstinate refusal to comply with what he decried as a multibillion-dollar unfunded federal mandate.

But while the anger is understandable, it probably is time for state officials to shelve the hot rhetoric and start thinking about what to do in the next five years to get ready for REAL ID requirements, as vexing and annoying and expensive as the prospect might be.

Some states already are making moves in that direction, even if they're reluctant to acknowledge it. Washington State, for example, has become the first to offer an "enhanced driver's license," a second cousin to REAL ID that isn't nearly as costly to implement.

"EDLs," as they're known in the business, will be used for land and sea border crossings between the U.S. and Canada, Mexico, Bermuda and the Caribbean beginning June 1, 2009. In addition to Washington State, Arizona, Michigan, New York and Vermont all have come to agreement with Homeland Security on plans to begin issuing EDLs in the near future. New York's will probably be available starting this fall.

While state officials don't always like to admit it, EDLs represent a fairly significant step in the direction of compliance with the federal law. Like REAL ID, they require a personal visit to a motor vehicle office and require applicants to present more documentation than has been needed at any point in the past.

Ken Brown, of the New York Department of Motor Vehicles, says it simply makes sense for economic development. "This will ease border crossings and allow commerce to flow freely," says Brown. That's important to Upstate New York and coastal Washington, both of which depend heavily on commerce with Canada.

Brown, like officials in other states, insists that EDLs and REAL ID are entirely different. In fact, they're not so very different. The states just don't want to be seen as throwing in the towel on this issue. But they're doing the most important thing that REAL ID demands of them: ramping up driver's-license screening. They're also passing some of the cost of doing that along to citizens; the EDLs to be used in New York will cost $30 more than a standard driver's license.

Homeland Security is being no less coy for its own reasons. A spokeswoman for the department, like Brown in New York, vigorously contests the comparison between EDLs and REAL ID. And yet one can't help but get the feeling that what really worries the feds about such a comparison is that it might suddenly wake states up to the politically sensitive fact that EDLs have subtly led them into effective REAL ID compliance.

Yes, there are fundamental differences between the two systems. Only U.S. citizens are eligible for EDLs (because they're essentially state-issued proof of citizenship). But the most important difference involves money. Full compliance with REAL ID as originally enacted by Congress could have cost the states as much as $11 billion. EDLs would cost a fraction of that. Of course, simply allowing citizens to use passports as secure identification would be much cheaper still to the states.

But states might as well get used to the fact that REAL ID is the law of the land, and that while it may bend a little, it's very unlikely to be repealed. Some day, in the not too distant future, the requirement of compliance will kick in. At that point, a state that can offer a reasonable substitute, such as EDLs, will have a decent chance of making it across the legal barrier.

So it's probably time for states to stop kicking and instead get ready for what is bound to come. The enhanced driver's license looks like a pretty good place to start.