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04/04/2008

Call it the Shootout at the I.D. Corral.

For the last few weeks, the nation’s attention has focused on our corner of New England as Maine has fought a high-stakes battle with the federal government over compliance with the Real ID Act. The attention came because Maine lawmakers were the first in the nation to pass a law refusing to comply with Real ID (followed by five other states) and the state was the last of several holdouts to request a waiver from a May 11 compliance deadline.

Would Gov. John Baldacci blink? Would Department of Homeland Security chief Michael Chertoff back down? Would Mainers be able to get on airplanes or walk into federal buildings if we didn’t get the deadline reprieve? Would the state’s law against compliance hold up against federal pressure and possible sanctions?
Real ID is a federal security measure designed to prevent drivers’ licenses from being issued to terrorists and illegal immigrants. States must comply with a series of 18 federally mandated provisions on licenses they issue, including machine-readable technology, central credential distribution and tamper-proof features. States must verify a person’s identity and citizenship and would be required to share license databases with other states and the federal government. They would not be allowed (as Maine does) to issue licenses to illegal immigrants.

Both the National Council of State Legislatures and the National Governors’ Association have criticized Real ID as an unfunded mandate; the state legislature group has demanded repeal of the law. Civil libertarians say the data-sharing aspect of Real ID poses privacy risks. And lawmakers across the nation, including Maine Republican Sen. Susan Collins, have complained that the Real ID Act is an unworkable, expensive and constitutionally suspect law that was hastily substituted for a more reasonable alternative prescribed by the 9/11 Commission and being developed by a joint state-federal working group in 2005.

In the last few weeks, the federal government has tussled with a number of states, including New Hampshire, South Carolina and Montana, that have refused to go along with Real ID’s provisions. Strangely, Chertoff granted those recalcitrant states extensions for complying with Real ID, even though the states had not asked for them. (Montana Gov. Brian Schweitzer commented wryly that if he were writing a headline about what happened with his state, it would be “DHS Blinks.”) In New Hampshire’s case, Chertoff granted an extension after first denying an initial request that stated baldly that the state had no intention of meeting Real ID’s requirements.

If Chertoff was inexplicably lenient with that handful of states, he played it inexplicably tough with Maine — and Maine residents were facing the imminent possibility of not being able to use their drivers’ licenses for identification when traveling by airplane. Last-minute negotiations over the past week consisted of the Baldacci administration making offers to comply, at least partially, with Real ID — and the feds digging in their heels.

Baldacci was caught between a Legislature that had voted overwhelmingly to reject Real ID and the feds, who were going to severely restrict the travel of Maine residents. He finally agreed this week to introduce legislation to bring the state into compliance with most of the provisions of the Real ID law. Contrary to a report published in this newspaper, he did not say the Legislature should ignore the legislation it previously passed; rather, he said that its provisions would be superceded by the legislation he had proposed, if the Legislature passed it.

That was enough to satisfy Chertoff and the reprieve was finally granted.

The whole Real ID compliance affair over the last few weeks had about it the air of a circus. Standards applied to one state weren’t applied to another. States that didn’t ask for reprieves got them — even after telling off the feds. States like Maine that did ask, didn’t get them and had to go against a legislative mandate in order to get the reprieve. What satisfied Chertoff in one state wasn’t enough in another. And to make it all that much more an Alice in Wonderland journey down the rabbit hole, Chertoff actually said to South Carolina officials that “the federal government should be interested in results, not words,” while in Maine, what Chertoff was precisely interested in was words (the governor’s promise of compliance), not results (the Legislature’s ban against compliance). Who blinked? It looks like both Chertoff and Baldacci winked.

We believe that a federal mandate to standardize and tighten the requirements for drivers’ licenses, as the 9/11 Commission recommended, is an appropriate security measure. That is what the 2005 working group was well on its way to devising — and not what Real ID is. Real ID’s unfunded mandate is an unfair burden on states. Its requirement for a shared national database, in an age when the security of massive databases like Hannaford’s is easily compromised, is indeed a threat to privacy.

Yet while it was appropriate for Maine and other states to enshrine their opposition to Real ID in statute, the fact remains that the feds had a pretty big stick to force states into compliance with the law. No governor, and no Legislature, wants the responsibility of keeping its citizens off of airplanes. Baldacci bought time with his promise; it’s up to the Legislature to determine whether he can keep it.

And in the meantime, it remains to be seen whether Chertoff’s threats can or will be realized. There are numerous moves from both Democrats and Republicans in Congress to scale back Real ID to a form more consonant with the 9/11 Commission’s recommendations for standardized drivers’ licenses. That would be a welcome measure of common sense in the increasingly farcical administration of this challenging law.

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