REAL ID has become a fixture in American political discourse, re-emerging periodically each time DHS attempts to coerce the nation to comply with its desired, nationwide identity management measures. Despite nearly two decades of public noncompliance, DHS published a final rule on January 14, 2025, circumventing not only blatant opposition from the American people, but also the procedural obligation to resist finalizing regulations during a transition period between administrations.
The Real ID Act of 2005 was a reactionary legislative response to mounting national security concerns following the events of September 11, 2001. This Act established REAL ID, a national form of identification necessary to participate in federal services or programs. Under DHS’s guidelines and compliance regulations under the Real ID Act, a citizen is effectively penalized for failing to comply with the mandated integration of REAL ID. Individuals refusing to obtain REAL ID will be prohibited from utilizing federal services, despite still retaining their legal obligation to pay taxes to fund those services, upon the effective date of the rule, May 7, 2025.
CPAC Foundation’s Center for Regulatory Freedom has submitted comments on the rule’s many issues relating to feasibility, as well as DHS's willingness to neglect ongoing national security concerns regarding various forms of “non-compliant ID” that are currently accepted for federal purposes. CRF noted that DHS’s most recent rule finalizing the implementation plan for REAL ID across the United States is not only projected to cost the federal government nearly $10 billion but also undermines the uniform incorporation of REAL ID across federal agencies.
DHS’s proposed methodology for ensuring nationwide compliance with REAL ID regulations hinges upon a “phased enforcement” approach, wherein each federal agency is given total autonomy in determining when and at what pace REAL ID is implemented. The Citizen’s Council for Health Freedom (CCHF) has expanded upon DHS’s proposed “phased enforcement,” specifically regarding its unconstitutionality. CCHF addresses the proposed period of phased enforcement, wherein individuals will experience progressive consequences to incentivize the adoption of REAL ID in instances of noncompliance. CRF agrees with the comments submitted by CCHF and emphatically supports their position that neither Congress nor any federal agency has the constitutional authority to implement REAL ID, nor can they utilize enforcement measures to secure nationwide compliance.
REAL ID threatens to pose substantial problems relating to the appropriate constitutional balance of authority between the federal government and the government of individual states. The issuance of driver’s licenses, the most used form of identification within the United States, has been a power exclusively relegated to the states. There are a plethora of constitutional concerns surrounding REAL ID implementation, the most apparent being the subversion of federalism and the rejection of the Tenth Amendment. The Tenth Amendment states that powers not expressly delegated to the federal government are reserved for the states or the people, respectively.
DHS’s rule directly challenges America’s long-standing federalist framework and, most egregiously, usurps authority over a power constitutionally reserved for and historically exercised by the states. Critics of the REAL ID Act allege that the legislation alone exceeds its constitutional limits by empowering a limb of the executive branch to dictate which privileges a citizen can enjoy. DHS’s rule and its subsequent enforcement provisions take this controversial usurpation of authority a step further, as the unelected Secretary of DHS is given sole, unbridled authority over determining which federal uses, activities, or programs fulfill the statutory definition for an “official purpose,” and therefore, which federal uses, activities, or programs require the use and possession of a REAL ID.
CRF intends to submit a petition to DHS, advocating that the most recent rulemaking seeking to nationally implement REAL ID be re-opened to welcome additional feedback from CRF, CCHF, other organizations, and concerned private citizens. DHS’s proposed implementation of the REAL ID Act threatens to sharply undermine the authority of each state and the general utility of state driver’s licenses. This rule also sources its authority from a relatively outdated and extraordinarily unpopular piece of legislation which was passed nearly two decades ago. The entire concept of REAL ID’s unpopularity is evidenced by the reluctance of the American people to actively use it. As of January 2024, the national adoption rate for Real ID-compliant driver's licenses and identification cards was about 0.56% per month. Even after DHS promulgated the final compliance date and corresponding consequences, the projected percentage of Americans that will have REAL ID by May 7, 2025, is only slightly above 60%.
The longstanding absence of REAL ID implementation has posed no more nor fewer security concerns than already exist, and frequent delays of the effective date of implementation have very clearly communicated to the American public that a nationalized form of identification is not necessary. Rather than penalize law-abiding citizens for failing to obtain a redundant form of identification, DHS should reopen their rulemaking process and direct their attention away from the usurpation of certain exclusive constitutional powers from the states. DHS should also refrain from issuing finalized rules during a transition period between administrations, especially immediately preceding the confirmation of a new Secretary of DHS who may disagree with the given rule or rules.
