Enforcement Comes at Last?

Most recently, DHS, on December 20, 2012, announced that it would begin to phase in the enforcement of REAL ID. The announcement indicated it would do so in a phased manner, with four distinct phases of enforcement, the first being restrictions on the use of non-compliant IDs for access to the DHS Headquarters facility, known as the Nebraska Avenue Complex (NAC). The enforcement schedule, set forth below, calls for a graduated enforcement, with each phase beginning with a period of public notice followed by a specified date when full enforcement begins. Each successive enforcement phase carries with it higher level consequence and impact upon the public, and culminates—no sooner than 2016—with full enforcement of the requirement to present REAL ID compliant driver’s licenses for the purpose of boarding federally regulated aircraft.²⁹³ This graduated enforcement, while perhaps excessive in its length, given DHS statements about how close most states are to full implementation, may prove to be a wise approach.

In support of its announcement regarding the phased enforcement, DHS published a brief and helpful overview of the planned enforcement that contained two useful visuals to inform the public and the states regarding 1) its enforcement timetable, and 2) the

292 Government Printing Office, “Federal Register, Volume 76 Issue 44 Minimum Standards for Driver’s Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes,” March 7, 2011, http://www.gpo.gov/fdsys/pkg/FR-2011-03-07/html/2011-5002.htm.

293 “DHS Releases Phased Enforcement Schedule for REAL ID.”

current status of state compliance with REAL ID requirements.²⁹⁴ Those visuals are reproduced in Figure 7. The first image is DHS’ chart showing the four phases of implementation, to include the following.

• The four phases of enforcement

• The enforcement action being taken

• The commencement date of public notice

• The commencement date of full enforcement

Figure 7. Enforcement Phases and Dates²⁹⁵

As can be seen, DHS’ plan is to do graduated and cumulative levels of enforcement, beginning with relatively low impact consequences affecting a limited population, and eventually culminating in the restriction of the ability of residents of non-compliant states to use their state issued identification documents for the purpose of boarding federal aircraft. This latter enforcement measure is the most well-known and anticipated consequence with a high impact on the general public. Notably, DHS does not commit to a date certain for that consequence, noting that it would occur “no sooner than 2016.”

DHS plans to undertake an evaluation following the implementation of the first three enforcement phases, to “assess the effects of enforcement and the progress of states in meeting the standards of the act.”²⁹⁶ That assessment will inform its decision prior to setting the date for full compliance with phase 4, and will “inform a fair and achievable

294 Department of Homeland Security, “REAL ID Enforcement in Brief,” December 20, 2013, http://www.dhs.gov/sites/default/files/publications/REAL-ID-IN-Brief-20131220.pdf.

295 Ibid.

296 Ibid.

timeline.”²⁹⁷ In each phase, DHS plans to precede the particular enforcement mechanism with a three-month advance notification period. How much public education and outreach DHS will undertake during that time remains to be seen. It is anticipated, however, that for a smooth implementation to occur, and to minimize the effects of the enforcement mechanisms, a fair degree of coordination with the states would occur, particularly those not yet compliant with REAL ID.

DHS’ release of its phased enforcement plan was also accompanied by an updated listing of the status of the states and territories showing their status as being either non-compliant or a non-compliant/extension state. Compliant states are those that have met all of the REAL ID requirements, and extension states are those that have sought extensions, which are currently valid through October 10. 2014.²⁹⁸ As full enforcement begins, residents of compliant/extension states can continue to use their state documents as before, but residents of non-compliant states “will need to follow alternative access control procedures for purposes covered by the Act.”²⁹⁹ Figure 8, supplied by DHS in connection with its announcement of the beginning of phased enforcement sets forth, in an easy to distinguish manner, the non-compliant states from the compliant/extension states.

297 Department of Homeland Security, “REAL ID Enforcement in Brief.”

298 Ibid.

299 Ibid.

Figure 8. Non-compliant and Compliant/Extension States³⁰⁰

DHS puts a positive spin on the status of the states, noting that as of December 20,2013, “approximately 75% of all U.S. drivers hold licenses from jurisdictions that have met REAL ID standards, or have received extensions.³⁰¹ While it is true that those drivers can be assured of no adverse consequences as a result, the reality is that the 75%

300 Department of Homeland Security, “REAL ID Enforcement in Brief.”

301 Ibid.

figure comes from 41 states, and of those, 21 have been deemed fully compliant. Adding the number of non-compliant states to the number that are the beneficiaries of extensions, yields a total of 35 states and territories still not in compliance. It is, undoubtedly, DHS’

expectation that the extension states will be encouraged to pursue more active measures to bring themselves into compliance during the course of the phased enforcement. The greater challenge, of course, is to persuade those non-compliant states, particularly those that are defiantly so, to pursue the necessary steps to come into compliance. The possibility—or even the likelihood—also remains of a confrontation, likely in the form of a legal challenge sometime down the line on the part of some or all the states that continue to oppose the REAL ID requirements. While this author believes that the likelihood of success of such a challenge is low, the fact remains that a victory for DHS many years down the line will simply result in significant delays in shoring up weaknesses in the nation’s license and non-driver license identification system. Those weak links have been, and will continue to be exploited by those who mean harm to individuals, institutions, and possibly, to the nation’s security.

B. CHAPTER CONCLUSION

Given the enormous scope and the complexity of the task for the states to come into full compliance, and the internal dynamics within states in addressing REAL ID, it is not surprising that the regular extension requests were made, and subsequently, granted.

Although it is not clear that these requests were done for this reason, granting the extension requests it also appears, in retrospect, to have been a move that may ultimately help to achieve full compliance. Moreover, it has been the back and forth between the states and the federal government, and the measures taken by both in fashioning responses to the legislation that reflects the truly interesting evolution regarding driver’s license and identification card security. Compliance could not be achieved without substantial effort on the part of both the states and the federal government.