In September 2001, we were attacked by a group of 19 Middle Eastern males. This group had driver’s licenses in several states, including Florida, using improper addresses. None were obtained in false identities. Of the 19, 16 were here legally. The 9/11 Commission recommended changes to how state driver’s licenses (the term ID card also applies but for brevity I will lump both together) were issued.
In February 2005, Wisconsin Rep. James Sensenbrenner sponsored the REAL ID Act, HR 418, in the U.S. House. While it passed an initial vote, it was never enacted. A few weeks later, he added the REAL ID Act as an amendment to a defense authorization and Tsunami relief bill, HR 1268. Despite this federal function not being authorized under the Constitution’s Article 1 Section 8, and as such being a violation of the Constitution’s 10th Amendment, this bill easily passed the House and Senate with no debate on REAL ID and was signed into law by Pres. Bush on May 11, 2005. The bill dictated to the states how they were to issue their driver’s licenses, to include keeping electronic or paper copies of citizen’s personal documents and a requirement for a residential address from all people, to include those such as police officers and domestic violence victims whose addresses were protected by state law. The concept was the person had to prove to the government who they were via these documents, even though there was no suspicion they were someone else, and there was never a warrant issued for the seizure of their papers as required by the 4th Amendment. There was no “opt-out”, and if a state did not comply, they were required to change how they issued their license to have it say it was not valid as “federal identification”- the Act says this using those two words, so it is a federal identification. The initial deadline for state compliance was 2008. The purposes stated in the federal act were four:
1) Entry into federal buildings
2) Flight on federally-regulated commercial aircraft
3) Entry into nuclear power plants, and
4) Any purpose as determined by the DHS Secretary.
The last one was omitted by Mr. Brian Zimmer, the staff member that claimed responsibility for writing the 2005 law when he spoke about it to the Florida Legislature in February 2011, and again by Mr. Sensenbrenner when he publicly discussed REAL ID in August 2011 at the Heritage Foundation.
The law was adopted in Florida in 2008 as part of Omnibus bill CS/SB 1992. It was 4 of 47 sections that changed our driver’s license law in Chapter 322. The law too effect on January 1, 2010, and resulted in huge backlogs due to citizens not having their papers in order. According to Steven Fielder of the DHSMV, Florida has spent over $10 million on REAL ID since 2008, with almost $3 million of that as unreimbursed state tax dollars. During this time, not one terrorist or illegal alien has been identified due solely to REAL ID.
In the intervening months, the Florida DHSMV deviated from the law by reducing the paperwork requirements for those born before 1935- many of these people never had a birth certificate, and thus could not renew their license they had here for decades. There were no sanctions for this common-sense deviation.
The law has significant parallels to the Brady Act of the 1990’s. In that Act, the federal government attempted to utilize local law enforcement to perform a federal function (background checks for firearm purchases). Two Sheriffs sued, and the Supreme Court held it was a violation of the 10th Amendment for the federal government to draft into federal service the local officers due to the dual sovereignty of the federal and state governments. The tie-in to REAL ID is that the federal government is attempting to draft the licensing functions of the several states to make a “federal identification”. This is likewise a violation of the 10th Amendment.
As the states looked at what REAL ID was going to do to them, many passed laws to prohibit or restrict the law. As of October 2011, 19 states have done so, with the legislation coming nearly equally from Democrats and Republicans. Only 9 have passed it. Of these 9, Utah and Michigan have since reversed their position and passed legislation or a resolution against REAL ID. The federal government pushed back the deadline from 2008 to 2011, and then from 2011 to 2013. In the meantime, two bills were filed in first the 110th (Republican, HR 4160) and then the 111th (Democrat, HR 140) Congress to cut “federal” funding to non-compliant states. Each of these died in committee. In the 112th, HR 3082 cut $16 million from REAL ID’s central hub funding.
The purposes of the law as have been articulated by the Florida sponsor, Sen. Cary Baker as well as Mr. Sensenbrenner respectively were to keep illegal aliens from getting a license, and to prevent terrorism (Mr. Sensenbrenner has also listed some things such as those with suspended licenses in one state not being able to go to another state, but there were already laws on the books here for that- F.S. 322.30). Both of these, while laudable, are not an effect of REAL ID. As to illegal aliens, they have driven in Florida w/o a license for decades and continue to do so. As to terrorists, of the original 19, 16 of them would heave been eligible for a REAL ID since they were here legally. The Heritage Foundation studied 39 failed terror plots since September 2001 and of these, none involved REAL ID in any way shape or form. The plots were foiled by good lawful police work coupled with intelligence. Many of the suspects in these plots were eligible for a REAL ID.
In summary, REAL ID:
1) Was passed in violation of the 10th Amendment since Congress cannot tell the states how to issue their driver’s licenses- a power reserved to the states.
2) Endangers the citizens of Florida by placing all documents in a central location, and making public the residential addresses of police officers and domestic violence victims, both of which used to be protected by state law.
3) Improperly required the seizure of personal papers in violation of the 4th Amendment.
4) Did not allow for states to “opt-out”.
5) Is a federal identification card.
6) Gives the DHS Secretary unlimited power as to the required use of a REAL ID.
7) Has cost the Florida taxpayer about $3 million, or over $10 million when the “federal” money is counted.
8) Has already been deviated from by the Florida DHSMV.
9) Is not supported by federal case law.
10) Has been legislated FOR in 9 states, 2 of which have subsequently reversed their position.
11) Has been legislated AGAINST in 19 states by both Democrats and Republicans. None of these states have been penalized in any way by the federal government. Two attempts to do so in Congress have failed.
12) Is being defunded by the current Congress.
13) Would not have prevented the 9/11 attacks, and has not prevented any subsequent plots.
14) Has not identified one illegal alien or terrorist.
15) Has created a tremendous and unnecessary hardship for many citizens in Florida.
The solution is HB 109 / S 220, the Florida Driver’s License Citizen Protection Act, which addresses the Constitutional and citizen-protection issues identified above. It does not change how aliens are processed. It is currently in the House Transportation & Highway Safety Subcommittee, chaired by Rep. Brad Drake, and needs to be heard so it can move to the next subcommittee.
Paul Henry
Floridians Against REAL ID, a non-partisan and non-profit citizen’s group
850-629-9550
