The DHS Backdown

This week marks an important, but not very publicized, admission by the Department of Homeland Security that the attempts to institute a National ID card may well be out of their reach. What happens in the next phase of this fight is anyone's guess.

CNet reported that "In the long-running Real ID staring match, the U.S. Department of Homeland Security ended up being the first to blink". How, exactly?

This week the DHS declared that by May 11, 2008, all 50 states will be technically Real-ID compliant. That sounds like a win for the DHS, doesn't it? But, there is one minor issue. It isn't true.

In fact, it is not close to being true. Several states are not anywhere near being compliant, owing partially to the fact that the final requirements were only recently released by the DHS. But that is just normal operating procedure from the Federal Government; it doesn't speak to where the DHS actually blinked.

What the DHS is refusing to acknowledge is that the states of New Hampshire, Maine, South Carolina, Oklahoma, Washington, and Montana have all passed legislation saying that they will *NEVER* enact the Real ID rules. Instead, the DHS is ignoring these public protests enough to allow all states IDs to be used in travel after the May 11, 2008 deadline has passed.

Even worse, the DHS is accepting promises of introducing legislation, and even outright statements of protest, as capitulation into the Real ID program.

Last month, Montana took a similar approach. Its governor, Brian Schweitzer, a Democrat, has repeatedly denounced Real ID and even called on his counterparts (PDF) in other states to oppose it. But Homeland Security dutifully accepted a relatively hostile letter from Schweitzer--saying he will never "authorize implementation of the Real ID Act"--as good enough

Does this tell us that when the December 31, 2009 deadline comes and goes that the DHS will continue to ignore the states that are not following the Real ID rules and continue to let their state IDs be used? Does this send a message to other states that they don't have to follow them as well?

"DHS is not in power here," said Jim Harper, the director of information policy studies at the free-market Cato Institute. "The states are in power. DHS has done all it could, but from a position of weakness...DHS put the best face it could on its capitulation to states with backbone. A lot more states will recognize that they own this issue, they control this debate."

So, it appears that a quiet death to the Real ID issue, with a new administration entering into power nearly a full year before the deadline. But I'm not sure I'm sold yet. I have heard other things dying quiet deaths, like the DMCA's first incarnation, before it came back into full force and imposed itself on the liberty minded American public. This is a fluid and continuing situation.