Homeland Security Watch

News and analysis of critical issues in homeland security

March 24, 2008

REAL ID Showdown Averted?

Filed under: Border Security,Intelligence and Info-Sharing,Privacy and Security — by Jonah Czerwinski on March 24, 2008

Waiting in the HLSWatch.com inbox upon my return from Big Sky, Montana, were scanned copies of correspondence between DHS Assistant Secretary for Policy Stewart Baker and Montana Attorney General Mike McGrath about the state’s request to opt out of the REAL ID Act.

DHS granted an extension on Friday to the state of Montana so that it can comply with the REAL ID Act. The only thing is that Montana never asked for an extension. Montana governor Brian Schweitzer made news over his intention to defy the law passed by Congress in 2005. Schweitzer is leading a charge (joined by Maine, South Carolina, New Hampshire, and Oklahoma) to oppose the REAL ID Act and any efforts by DHS to impose penalties for non-compliance.

The 9/11 Commission recommended that the U.S. rationalize the state identification regime in order to reduce the risk of fraud (suspected to aid terrorists and criminals alike). The Commission argued that the federal government should “set standards for the issuance of … driver’s licenses.” The REAL ID Act requires that a standardized driver’s license be used for “official purposes.” At this point, DHS proposes to define “official purposes” of a REAL ID as accessing federal facilities and nuclear power plants and boarding commercial aircraft. The main beef states have with the Act is the lack of funding to pay for the mandate. DHS is stretching out the compliance period over almost ten years (2014) to make it easier on states, but that only avoids the REAL problem according to Governor Schweitzer. Schweitzer and the Montana state legislature oppose it on principle.

(It sure doesn’t help that the Secretary suggested contrarians should “grow up” about security measures, such as the REAL ID provisions. The statement emboldened critics to examine his tenure more closely and shift the focus away from REAL ID.)

Montana seeks a complete waiver, but DHS’s Stewart Baker explained in a letter to Montana’s Attorney General that DHS has only the authority to carry out the statute or grant extensions to state’s that “meet the requirements” of the REAL ID Act.

Frankly, after Montana’s governor has called the law “nonsensical”, “kooky,” and “hare-brained,” and invited other states to join him in a showdown over “the DHS coercion to comply,” I’m impressed with Baker’s dispassionate response. Baker wrote in a response the same day he received McGrath’s letter:

Under the statute, the Department [of Homeland Security] can only grant an extension of the compliance deadline [as opposed to a waiver.] Therefore, I can only provide the relief you are seeking by treating your letter as a request for an extension.

Of course, Schweitzer’s whole deal is that he’ll never seek an extension because it would be interpreted as intention to implement the Act.

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3 Comments »

Comment by William R. Cumming

March 24, 2008 @ 6:17 am

Looks very much like the former civil defense program wherein some States and some cities fought the concept of crisis relocation but also still wanted all the federal money they could recieve. No doubt in my mind that REAL-ID is an unfunded statutory mandate, but perhaps a necessary one. There is a crudity to the legislative process when everyone postures and no ones wants to do the really hard drudge work of shaping legislation into what make sense now leaving to the future more precision. But there is an undertone in all this posturing by the STATES and the FEDS that the principle of faithfully upholding and executing the Constitution and laws of the United States is being undermined in a lawless and destructive manner. Part of this is lawlessness which marks both parties is lack of knowledge of procedure. Under Title 18 of the US Code any fiscal officer in the Executive Branch can request an opinion in writing from the Comptroller General of the US as to whether and under what conditions federal funds are properly expended. This is a matter of right flowing to the individual officer, not the department or agency head, in order to protect against anti-dificiencys also a Title 18 criminal code violation, never prosecuted in fact by DOJ. Also department and agencies can request rulings from OLC (Office of Legal Counsel) in DOJ on issues that allow DOJ is establish what they will and won’t litigate well in advance. Note that all Departments and agencies typically and mandatorily in most instances operate their litigation strategies through DOJ and have no independent litigation authority. Both the above procedures take time but then Congress and the Department and Agencies have the benefit of usually expert opinion that they can use to calibrate their administrative practice. It is seldom realized even by Public Administration professionals that DOJ and Executive Branch lawyers would be laughed at by Federal Judges if they argued they lacked funding to carry out some legislative mandate by Congress. Yet the Executive Branch also is subject to unfunded mandates imposed by Congress through its lack of calibration of the authorization and appropriation process. This in turn adversly impacts the states. Perhaps the hard work of documenting Executive Branch legal authorities, in conjunction, with committee counsel should always be a matter of course. It is interesting that DOJ in the 1930′s finally supported the Federal Register Act when they discovered after 8 years of litigation that they were defending a regulation that had been rescinded. Yes, there really is some importance to process in Public Administration and it would be interesting to know if any portion of the REAL-ID ACT had been opined upon in any significant way by Executive Branch lawers or the Comp. GEN. This is why routine legal opinions of each department and agency, and OLC should be published and made available. Perhaps pending requests for opinions would also give insight into important Executive Branch questions. After all look at the significance of just one agency’s ACTIONS ON DECISIONS adopted by IRS on the principle that not everything could be litigated and there was a need by the commercial and tax world for some certainty.

Pingback by Identity Resolution Daily Links 2008-3-24 - Identity Resolution Daily

March 24, 2008 @ 1:07 pm

[...] Homeland Security Watch: REAL ID Showdown Averted? “DHS granted an extension on Friday to the state of Montana so that it can comply with the REAL ID Act. The only thing is that Montana never asked for an extension. Montana governor Brian Schweitzer made news over his intention to defy the law passed by Congress in 2005. Schweitzer is leading a charge (joined by Maine, South Carolina, New Hampshire, and Oklahoma) to oppose the REAL ID Act and any efforts by DHS to impose penalties for non-compliance.” [...]

Pingback by Homeland Security Watch » Chertoff to Convene Bloggers Tomorrow

April 1, 2008 @ 2:57 pm

[...] of us bloggers for a roundtable tomorrow at DHS Headquarters. Topics are likely to include the recent developments surrounding REAL ID deadlines and compliance by states. Or perhaps the legal waivers Chertoff issued [...]

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