No, America, You Don't Need to Comply with the REAL ID Act

By Jim Harper
Cato @ Liberty
Sep. 24, 2015

Like countless similar news stories recently, a report on Business Insider claims: "Residents from 5 US states could soon need a passport for a domestic flight." The idea is that the Transportation Security Administration will begin to enforce the REAL ID Act in 2016 by denying airport access to travelers from non-compliant states.

It’s not true.

Nobody needs to get a passport to fly domestically. No state needs to implement the REAL ID Act’s national ID mandates.

I’ve been collecting examples of misleading reports like this at the Twitter hashtag "#TakenInByDHS." A recent blog post of mine, also called "Taken In by DHS," fleshes out the story of widespread misreporting on the situation with our national ID law.

In brief, the Department of Homeland Security is trying to get the states to convert their driver licensing systems into components of a U.S. national ID system. The REAL ID Act, which Congress passed in 2005, allows DHS to refuse IDs from non-compliant states, including IDs travelers present at TSA’s airport checkpoints.

This concerns some people when they first learn about it, but the REAL ID compliance deadline passed more than seven years ago with not one state in compliance. DHS has improvised deadline after deadline since then, and it has caved every single time its deadlines have been reached. I went through the history last year in my Cato Policy Analysis, "REAL ID: A State-by-State Update."

DHS’s latest story is that it might start to enforce REAL ID in 2016. It won’t.

Contrary to DHS claims, not one state is in compliance with the national ID law. Not one. Some years ago, the department created a whittled down "material compliance checklist," and it has freely given out deadline extensions to states that make enough of a show that they might go along with the federal government’s plans.

The story now being spun is that TSA will categorically turn away people from a small group of remaining outlier states—if you can actually call New York small—when enforcement starts next year. I am 100% certain they will not. Every state will be out of compliance for the entire year, and the TSA will not implement a policy of refusing travelers from non-compliant states.

The reason for my confidence is a basic understanding of the politics involved. If TSA—perhaps the most despised U.S. federal agency in history—refuses people the right to travel because they do not carry a national ID, the uproar will be intense and lasting. The lawsuits that follow such an action will make their heads spin. And it will all be focused at the federal government: the TSA, the DHS, and the U.S. Congress with its flaccid oversight of the security bureaucracy.

DHS officials can do basic political calculations, and, while they will communicate through back-channels and proxies that they plan to enforce REAL ID this time, there is no chance that they will actually bring a storm like this down upon themselves. State officials who do similar calculations from their end realize that they don’t have to follow federal mandates this time, or ever, and that their states will be worse off if they do. All this issue requires is a little sunlight.

Americans, you don’t have to have a passport to fly domestically. American states, you don’t have to obey federal national ID mandates. America, you don’t need to comply with the REAL ID Act.