The REAL ID Act
The 9/11 hijackers gained access to commercial aircraft using various forms of identity documents, some obtained legitimately and some fraudulently. The 9/11 Commission concluded that preventing terrorists from obtaining state-issued identity documents was a national security issue (DHS, n.d.). In 2005, in response to the commission’s recommendations, Congress passed the REAL ID Act, setting minimum standards for identification documents to be valid for federal purposes (H.R. 1268, 2005 [pdf]). These standards require states to confirm the citizenship or authorized immigration status of any applicant for an identity document that can be used to gain access to a commercial aircraft or enter a U.S. government building. Driver’s licenses that do not meet these standards may be issued, but they must be clearly marked as invalid as identity documents for federal purposes.
All but two of the states (New Mexico and Washington) that issue driver’s licenses regardless of immigration status have adopted a two-tiered system in which the standard license meets REAL ID Act criteria and another license, available to unauthorized residents, does not meet those requirements and includes a visible notice that it cannot be used as an identity document for federal purposes.
The requirement to visually distinguish identification held by those without lawful status in the United States from other IDs has proven controversial. Before passage of the REAL ID Act, states that allowed all residents who could prove their identities to driveissued the same licenses to everyone. Immigrants and immigrant rights advocates have argued that the two-tiered system stigmatizes holders of the “second-tier” licenses, inviting discrimination and profiling, raising concerns about the use of the IDs for immigration enforcement, and limiting the usefulness of the cards as general identification and civic engagement tools (White, 2013; Taxin, 2014; Robles, 2013).
Concerns about marking license holders as potentially undocumented have led to debates about how distinct the two forms of ID should be, and how much distinction constitutes compliance (see The ID Gallery for side-by-side designs by jurisdiction).
The Department of Homeland Security has stated that “[n]o inferences or assumptions should be drawn about the particular reason an individual possesses a card” marked invalid for federal purposes, “including inferences or assumptions about the person’s citizenship or immigration status” (DHS, n.d.). At the same time, DHS’s rejection of California’s initial design for a non-REAL ID-compliant license minimally distinguished from the compliant one shows the agency’s commitment to a visual difference that can be easily noted by a layperson (see Driving Privileges in California).
Individual states have addressed the challenges of the REAL ID Act in two ways. Some states write explicit protections from discrimination, disclosure of information, or profiling into their licensing laws. And in some states, licenses that don’t meet REAL ID standards are available to the public at large, or to segments of it. (See Driving Privileges State by State for a breakdown of which states offer which protections.)
Progress toward full implementation of REAL ID has been slow. The initial 2008 deadline for implementation was pushed back to 2009, then to 2011, then to 2013. Many states were unable or unwilling to invest in the technology to implement the law, while DHS was loathe to cause the air travel delays that would come with refusing to accept noncompliant ID at airport security (Belluck, 2006; Scott, 2007; DHS, 2009; DHS, 2011). The most recent time frame calls for a gradual rollout, with full implementation no sooner than 2016 (DHS, 2014; Vock, 2014).
An array of other interest groups have objected to various aspects of REAL ID since it was proposed. Libertarians, antifederalists, and civil libertarians have raised concerns that the policy will create a “national ID,” potentially infringing on individual freedoms, leading to unconstitutional invasions of privacy, or exposing ID holders to higher risks of identity theft (Harper, 2007; American Civil Liberties Union [ACLU], n.d.).
Several states have passed legislation prohibiting implementation of all or part of REAL ID (ACLU, n.d., Harper, 2014 [pdf]). As of October 2014, only 20 states met the law’s standards, and 7 noncompliant states had not been granted extensions to the deadline to do so (DHS, 2014). The delays and resistance surrounding this legislation raise questions about whether it will be fully implemented, and if it is, what its provisions will look like when that happens.
Photo credit to Boris Babanov
About this project
The Tomás Rivera Policy Institute, a university research center with the mission to address the challenges and opportunities of demographic diversity in the 21st century global city, has produced these featured digital publications using the USC Media Curator, an online publishing platform designed to bring together innovative research from across the University of Southern California and beyond. This project curates research relevant for immigrant service providers on the topics of Access & Use of Technology, Access & Use of Financial Services, Notario Fraud, and Driver's Licenses for the unauthorized.