| Full title | To establish and rapidly implement regulations for State driver's license and identification document security standards, to prevent terrorists from abusing the asylum laws of the United States, to unify terrorism-related grounds for inadmissibility and removal, and to ensure expeditious construction of the San Diego border fence. |
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| Effective | May 11, 2008[1] (original); January 15, 2013[2] (current) |
| Citations | |
| Public Law | 109-13 |
| Codification | |
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| Major amendments | |
| Relevant Supreme Court cases | |
The REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 302, enacted May 11, 2005, was an Act of Congress that modified U.S. federal law pertaining to security, authentication, and issuance procedures standards for the state driver's licenses and identification (ID) cards, as well as various immigration issues pertaining to terrorism.
The law set forth certain requirements for state driver's licenses and ID cards to be accepted by the federal government for "official purposes", as defined by the Secretary of Homeland Security. The Secretary of Homeland Security has currently defined "official purposes" as presenting state driver's licenses and identification cards for boarding commercially operated airline flights and entering federal buildings and nuclear power plants.
The REAL ID Act implements the following:
As of April 2, 2008, all 50 states have either applied for extensions of the original May 11, 2008 compliance deadline or received unsolicited extensions.[4] As of October 2009[update], 25 states have approved either resolutions or binding legislation not to participate in the program, and with President Obama's selection of Janet Napolitano (a prominent critic of the program) to head the Department of Homeland Security, the future of the law remains uncertain,[5] and bills have been introduced into Congress to amend or repeal it.[6] The most recent of these, dubbed PASS ID, would eliminate many of the more burdensome technological requirements but still require states to meet federal standards in order to have their ID cards accepted by federal agencies.
Contents
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The Real ID Act started off as H.R. 418, which passed the House[7] and went stagnant. Representative James Sensenbrenner (R) of Wisconsin, the author of the original Real ID Act, then attached it as a rider on a military spending bill, H.R. 1268, the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005. The House of Representatives passed that spending bill with the Real ID rider 368–58,[8] and the Senate passed the joint House-Senate conference report on that bill 100–0.[9] President Bush signed it into law on May 11, 2005.[3]
On March 2, 2007, it was announced that enforcement of the Act would be postponed for two years.[10] The provisions of the bill will be delayed from going into effect until December 2009. On January 11, 2008, it was announced that the deadline has been extended again, until 2011, in hopes of gaining more support from states.[11] On the same date the Department of Homeland Security released the final rule[12] regarding the implementation of the driver's licenses provisions of the Real ID Act.[13]
In the United States, driver's licenses are issued by the states, not by the federal government. Additionally, because the United States has no national identification card and because of the widespread use of cars, driver's licenses have been used as a de facto standard form of identification within the country. For non-drivers, states also issue voluntary identification cards which do not grant driving privileges. Prior to the REAL ID Act, each state set its own rules and criteria regarding the issuance of a driver's license or identification card, including the look of the card, what data is on the card, what documents must be provided to obtain one, and what information is stored in each state's database of licensed drivers and identification card holders.
Driver's license implications
Instead, the Real ID Act directly imposes specific federal driver’s license standards.
The REAL ID Act Driver's License Summary[15] details the following provisions of the Act's driver's license title:
After 2011, "a Federal agency may not accept, for any official purpose, a driver's license or identification card issued by a state to any person unless the state is meeting the requirements" specified in the REAL ID Act. The DHS will continue to consider additional ways in which a REAL ID license can or should be used for official federal purposes without seeking the approval of Congress before doing so. States remain free to also issue non-complying licenses and IDs, so long as these have a unique design and a clear statement that they cannot be accepted for any Federal identification purpose. The federal Transportation Security Administration is responsible for security check-in at airports, so bearers of non-compliant documents would no longer be able to travel on common carrier aircraft without additional screening unless they had an alternative government-issued photo ID.[16]
People born on or after December 1, 1964, will have to obtain a REAL ID by December 1, 2014. Those born before December 1, 1964, will have until December 1, 2017 to obtain their REAL ID.[17]
The national license/ID standards cover:
Strictly speaking, many of these requirements are not new. They replace similar language in Section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub.L. 108-458), which had not yet gone into effect before being repealed by the Real ID Act.
A Real ID-compliant form of identification requires, at a minimum, the following pieces of data:
Said cards must also feature specific security features intended to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes. These cards must also present data in a common, machine-readable format (bar codes, Smart card technology, et al.). Although the use of wireless RFID chips was offered for consideration in the proposed rulemaking process, it was not included in the latest rulemaking process.[18] DHS could consider additional technological requirements to be incorporated into the licenses after consulting with the states. In addition, DHS has required the use of RFID chips in its Enhanced Driver's License program, which the Department is proposing as an alternative to REAL ID.[19]
Before a card can be issued, the applicant must provide the following documentation:[20]
Digital images of each identity document will be stored in each state DMV database.
Section 202(c)(3) of the Real ID Act[21] requires the states to "verify, with the issuing agency, the issuance, validity, and completeness of each document" that is required to be presented by a driver's license applicant to prove their identity, birth date, legal status in the U.S., social security number and the address of their principal residence. The same section states that the only foreign document acceptable is a foreign passport.
The DHS final rule[12] regarding implementation of the Real ID Act driver's license provisions relaxes, and in some instances waives altogether, these verification requirements of the Real ID Act. Thus the DHS rule concedes that there is no practical mechanism to verify with the issuers the validity of documents proving the applicant's primary address (such as a mortgage statement or a utility bill) and leaves the implementation of this verification requirement to discretion of the states (page 5297 of the DHS final rule in the Federal Register).[12] However, the DHS rule, Section 37.11(c), mandates that the Real ID license applicants be required to present at least two documents documenting the address of their primary residence.
The DHS rule declines to implement, as impractical, the provision of the Act requiring verification of the validity of foreign passports, presented by foreign driver's license applicants as proof of identity, with the authorities that issued these foreign passports (page 5294 of the DHS final rule in the Federal Register).[12]
Section 37.11(c) of the DHS final rule allows the states to accept several types of documents as proof of social security number: a social security card, a W-2 form, an SSA-1099 form, a non-SSA-1099 form, or a pay stub bearing the applicant's name and SSN. However, the states are not required to verify the validity of these documents directly with their issuers (e.g. with the employer that issued a W-2 form or a pay stub). Instead, the DHS rule requires the states to verify the validity, and its match with the name given, of the social security number itself, via electronically querying the Social Security On-Line Verification (SSOLV) database managed by the Social Security Administration.
The DHS rule, Section 37.13(b)(3), specifies that the validity of birth certificates, presented to document the date of birth or to prove U.S. citizenship, should be verified electronically, by accessing the Electronic Verification of Vital Events (EVVE) system maintained by the National Association of Public Health Statistics and Information Systems (NAPHSIS), rather than directly with the issuers of the birth certificates (such as hospitals).
Each state must agree to share its motor vehicle database with all other states. This database must include, at a minimum, all the data printed on the state drivers' licenses and ID cards, plus drivers' histories (including motor vehicle violations, suspensions, and points on licenses).
Original legislation contained one of the most controversial elements which did not make it into the final legislation that was signed into law. It would have required states to sign a new compact known as the Driver License Agreement (DLA) as written by the Joint Driver's License Compact/ Non-Resident Violators Compact Executive Board with staff support provided by the American Association of Motor Vehicle Administrators AAMVA and as approved by state Driver Licensing Agency representatives. The DLA is a consolidation of the Driver's License Compact and the Non-Resident Violators Compact, which currently have 46 and 45 member states, respectively. The following controversial elements of the DLA are already in the existing compacts: a convicting state must report out-of-state convictions to the licensing state, states must grant license reciprocity to drivers licensed in other states, and states must allow authorities in other states access to driving records, consistent with the Driver Privacy Protection Act.
New controversial requirements of the DLA are: (1) provinces and territories in Canada and states in Mexico are allowed to join the DLA and (2) member states, provinces, and territories are subject to reviews by DLA authorities for compliance with the provisions of the DLA. The DLA originated in concept with the 1994 establishment of a North American Driver License Agreement (NADLA) task force, and has created controversy among state representatives opposed to citizen data being shared with other countries.[22] According to a 2005 analysis of the DLA done by the National Conference of State Legislators, the DLA defines "jurisdiction" to allow participation by a territory or province of Canada and by any state of the Republic of Mexico or the Federal District of Mexico. The DLA can be amended by a vote of at least two-thirds of the member jurisdictions.
On January 11, 2008 DHS released the final rule[12] regarding the implementation of the driver's licenses provisions of the Real ID Act. Under the DHS final rule, those states that chose to comply with Driver's License provisions of the Real ID Act are allowed to apply for up to two extensions of the May 11, 2008 deadline for implementing these provisions: an extension until no later than December 31, 2009 and an additional extension until no later than May 11, 2011. The DHS final rule mandates that, as of March 11, 2011, driver's licenses issued by the states that are not deemed to be in full compliance with the Real ID Act, will not be accepted for federal purposes. The Secretary of Homeland Security is given discretion to determine the scope of such official purposes in the future.[23] For the states that do not apply to DHS, by March 31, 2008, for an extension of the May 11, 2008 implementation deadline, that deadline will apply: after May 11, 2008 driver's licenses issued by such states will not be accepted for federal purposes.
After the final implementation deadline, some non-Real-ID-compliant licenses will continue to be accepted for federal purposes, provided DHS judges that the state which issued such a license is in full compliance with the Real ID Act by the final implementation deadline. However, in order for their licenses to be accepted for federal purposes, all people born after December 1, 1964 will be required to have Real-ID-compliant cards by December 1, 2014. Additionally, in order to be accepted for federal purposes, people born before December 1, 1964 will be required to have Real-ID-compliant cards by December 1, 2017.
In March 2011 the U.S. Department of Homeland Security further postponed the effective date of the Real ID Act implementation deadline until January 15, 2013,[24]
As of May 11, 2005, several portions of the Real ID Act have imposed higher burdens and stricter standards of proof for individuals applying for asylum and other related forms of relief. For the first time, immigration judges can require an applicant to produce corroborating evidence (8 U.S.C. § 1229a(c)(4)(B). Additionally, the government may also require that an applicant produce corroborating evidence, a requirement that may only be overcome if the judge is convinced that such evidence is unavailable (8 U.S.C. § 1252(b)(4)).
Restricting illegal immigrants or legal immigrants who can't prove their legal status, or are without social security numbers, from obtaining driver's licenses may keep them from obtaining liability insurance and from working, in practice, causing many immigrants and foreign nationals to lose their jobs or to travel internationally in order to renew their drivers license. Furthermore, for visitors on J-1 and H1B visas, the fact that visas may expire before their legal stay is over (this happens due to the fact that J-1 Visas are issued with a one year expiration date but visitors are allowed to stay for their "duration of stay" as long as they have a valid contract) can make the process of renewing a driver's license extremely complex and, as mentioned above, force legal foreign citizens to travel abroad only to renew a VISA which wouldn't need to be renewed if it weren't for the need to renew one's drivers license. Although the new law does allow states to offer "not for federal ID" licenses in these cases, and that some states (e.g., Utah and Tennessee) have already started issuing such "driving privileges certificates/cards" in lieu of regular drivers licenses, allowing such applicants to be tested and licensed to drive and obtain liability insurance, the majority of US states do not plan to offer "not for federal ID" licenses. In October 2007, then-governor of New York Eliot Spitzer announced that the state will adopt a similar "multi-tiered" licensing scheme in which the state will issue three different kinds of driver licenses, two of which comply with the Real ID security requirements and one which will be marked as "not for federal ID" purposes.[25] However, following a political outcry, Spitzer withdrew his proposal to issue licenses to those unable to prove legal residence.[26]
An earlier law (Section 102 of Pub.L. 104-208, which is now part of 8 U.S.C. § 1103) provided for improvements to physical barriers at the borders of the United States.
Subsection (a) of this law reads as follows: "The Attorney General, in consultation with the Commissioner of Immigration and Naturalization, shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States."
Subsection (b) orders the Attorney General to commence work on specified improvements to a 14-mile section of the existing border fence near San Diego, and allocates funds for the project.
Subsection (c) provides for waivers of laws that interfere with the work described in subsections (a) and (b). Prior to the Real ID Act, this subsection allowed waivers of only two specific federal environmental laws.
The Real ID Act amends the language of subsection (c) to make the following changes:
The Real ID Act introduces stricter laws governing applications for asylum and deportation of aliens for terrorist activity. However, at the same time, it makes two minor changes to U.S. immigration law:
The deportation of aliens for terrorist activities is governed by the following provisions:
Section 212(a)(3)(B): Terrorist activities
The INA (Immigration & Nationality Act) defines "terrorist activity" to mean any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:
Other pertinent portions of Section 212(a)(3)(B) are set forth below:
"Engage in terrorist activity" defined
As used in this chapter (Chapter 8 of the INA), the term, "engage in terrorist activity" means in an individual capacity or as a member of an organization:
This clause shall not apply to any material support the alien afforded to an organization or individual that has committed terrorist activity, if the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, concludes in his sole unreviewable discretion, that that this clause should not apply."
"Representative" defined
As used in this paragraph, the term, "representative" includes an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.
"Terrorist organization" defined
As used in Clause (i)(VI) and Clause (iv), the term ‘foreign terrorist organization’ means an organization:
Section 140(d)(2) of the "Foreign Relations Authorization Act", Fiscal Years 1988 and 1989 defines "terrorism" as "premeditated, politically motivated violence, perpetrated against noncombatant targets by subnational groups or clandestine agents."
The Real ID Act introduces complex rules covering "delivery bonds." These resemble bail bonds, but are to be required for aliens that have been released pending hearings.
The remaining sections of the Real ID Act allocate funding for some reports and pilot projects related to border security, and change visa limits for temporary workers, nurses, and Australians.
Under the REAL ID Act, nationals of Australia are eligible to receive a special E-3 visa. This provision was the result of negotiations between the two countries that also led to the Australia-United States Free Trade Agreement which came into force on January 1, 2005.
The Real ID Act has faced criticism from across the political spectrum and remains the subject of several ongoing controversies. Opponents of the Real ID Act include libertarian groups[27], in particular the Cato Institute; immigrant advocacy groups; human and civil rights organizations, including ACLU; Christian advocacy groups such as the ACLJ;[28] privacy advocacy groups, including 511 campaign; state-level citizen's groups such as North Carolinians Against Real ID [29] and Floridians Against REAL ID [30]; good government and government accountability groups; labor groups such as AFL-CIO; People for the American Way; consumer and patient protection groups; some gun rights groups; many state lawmakers, state legislatures and governors; The Constitution Party and others.[31][32] Real ID is opposed by such groups as Gun Owners of America, by the editorial page of the Wall Street Journal as well as the Obama administration. Along with the Bush administration, the Real ID Act is strongly supported by the conservative Heritage Foundation and by many anti-illegal immigration advocates.[31] Founded by evangelical Christian Pat Robertson, the American Center for Law and Justice (ACLJ) participated in a joint press conference with the ACLU in 2008, highlighting the broad diversity of the coalition opposing Title II of the REAL ID Act.[33] The National Coalition Against Domestic Violence has also voiced concern about REAL ID.[34]
Several legal challenges to REAL ID are underway by individuals in state courts, including Adrian Wyllie in Florida[35] and Kaye Beach in Oklahoma.[36]
Among the 2008 presidential candidates, according to a February 2008 CNet report at news.com, John McCain strongly supported the Real ID Act, Barack Obama and Ron Paul flatly opposed it, while Hillary Clinton called for the law to be reviewed.[37] In a September 2007 interview Mike Huckabee expressed opposition to the Real ID Act, calling the Real ID Act "a huge mistake".[38]
The original Real ID Act, H. R. 418, was approved by the House on February 10, 2005 by a vote of 261-161. At the insistence of the Real ID Act sponsor and then House Judiciary Committee Chair F. James Sensenbrenner (Republican, Wisconsin), the Real ID Act was subsequently attached by the House Republican leadership as a rider to H.R. 1268, a bill dealing with emergency appropriations for the Iraq War and with the Tsunami relief funding. H.R. 1268 was widely regarded as a "must-pass" legislation. The original version of H.R. 1268 was passed by the Senate on April 21, 2005 and did not include the Real ID Act. However, the Real ID Act was inserted in the conference report on H.R. 1268 that was then passed by the House on May 5, 2005 by a 368-58 vote and was unanimously passed by the Senate on May 10, 2005.[39] The Senate never discussed or voted on the Real ID Act specifically and no Senate committee hearings were conducted on the Real ID Act prior to its passage.[40] Critics charged that this procedure was undemocratic and that the bill's proponents avoided a substantive debate on a far-reaching piece of legislation by attaching it to a "must-pass" bill.[40][41][42][43]
A May 3, 2005 statement by the American Immigration Lawyers Association said: "Because Congress held no hearings or meaningful debate on the legislation and amended it to a must-pass spending bill, the REAL ID Act did not receive the scrutiny necessary for most measures, and most certainly not the level required for a measure of this importance and impact. Consistent with the lack of debate and discussion, conference negotiations also were held behind closed doors, with Democrats prevented from participating."[44]
There is disagreement about whether the Real ID Act institutes a "national identification card" system.[45] The new law only sets forth national standards, but leaves the issuance of cards and the maintenance of databases in state hands; therefore, the Department of Homeland Security claims it is not a "national ID" system.[46] Web sites such as no2realid.org, unrealid.com, and realnightmare.org argue that this is a trivial distinction, and that the new cards are in fact national ID cards, thanks to the uniform national standards created by the AAMVA and (especially) the linked databases, and by the fact that such identification is mandatory if people wish to travel out of the US.
Many advocacy groups and individual opponents of the Real ID Act believe that having a Real ID-compliant license may become a requirement for various basic tasks. Thus a January 2008 statement by ACLU of Maryland says: "The law places no limits on potential required uses for Real IDs. In time, Real IDs could be required to vote, collect a Social Security check, access Medicaid, open a bank account, go to an Orioles game, or buy a gun. The private sector could begin mandating a Real ID to perform countless commercial and financial activities, such as renting a DVD or buying car insurance. Real ID cards would become a necessity, making them de facto national IDs." However, in order to perform many of those tasks, government-issued identification is already required (e.g., two forms of ID - usually a driver's license, passport, or Social Security card - are required by the Patriot Act in order to open a bank account).[47]
Portions of the Real ID Act pertaining to states were scheduled to take effect on May 11, 2008, three years after the law passed, but the deadline had been extended to December 31, 2009.[48] On January 11, 2008, it was announced the deadline has been extended again, until 2011, in hopes of gaining more support from states.[11]
On January 25, 2007, a Resolution passed overwhelmingly in the Maine Legislature that refuses implementation of the Real ID Act in that state, and calls on Congress to repeal the law. Many Maine lawmakers believe the law does more harm than good, that it would be a bureaucratic nightmare to enforce, is threatening to individual privacy, makes citizens increasingly vulnerable to ID theft, and would cost Maine taxpayers at least $185 million in five years because of the massive unfunded federal mandates on all the states. The Resolution vote in the Maine House was 137-4 and in the Maine Senate unanimous, 34-0.[49]
On February 16, 2007, Utah unanimously passed a resolution that opposes the REAL ID Act.[50] The resolution states that REAL ID is "in opposition to the Jeffersonian principles of individual liberty, free markets, and limited government." It further states that "the use of identification-based security cannot be justified as part of a 'layered' security system if the costs of the identification 'layer'--in dollars, lost privacy, and lost liberty--are greater than the security identification provides":
"the "common machine-readable technology" required by the REAL ID Act would convert state-issued driver licenses and identification cards into tracking devices, allowing computers to note and record people's whereabouts each time they are identified"
"the requirement that states maintain databases of information about their citizens and residents and then share this personal information with all other states will expose every state to the information security weaknesses of every other state and threaten the privacy of every American"
"the REAL ID Act wrongly coerces states into doing the federal government's bidding by threatening to refuse noncomplying states' citizens the privileges and immunities enjoyed by other states' citizens"
Arkansas, Arizona, Colorado, Georgia, Hawaii, Idaho, Illinois, Louisiana, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Dakota, Oklahoma, South Carolina, Tennessee, Virginia, and Washington have joined Maine and Utah in passing legislation opposing Real ID.[51][52][53][54][55][56]
Similar resolutions are pending in Alaska, Kentucky, Louisiana, Maryland, Massachusetts, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Vermont, Washington, D.C., West Virginia, Wisconsin, and Wyoming.[57]
Other states have moved aggressively to upgrade their IDs since 9/11, and still others have staked decidedly pro-Real ID positions, such as North Carolina.[58] Some states whose legislatures passed non-binding resolutions opposing REAL ID are nonetheless working to comply with the law, such as Illinois.[59] In announcing the new regulations, Secretary of Homeland Security Michael Chertoff cited California, Alabama and North Dakota[60] as examples of states that had made progress in complying with Real ID.
On July 7, 2008, PR-Governor Aníbal Acevedo Vilá announced that all 15 Puerto Rico Department of Transportation and Public Works Driver's Services Center will implement a new system complying with the Real-ID Act.[61] \ As of January 29, 2008, the Department of Homeland Security has announced $79.8 million in grant monies[62] to assist states with REAL ID implementation, and set an application deadline of March 7, 2008.
On April 16, 2009 the Missouri House of Representatives passed the anti REAL ID bill HB 361 to repeal section 302.171, RSMo, and to enact in lieu thereof two new sections relating to noncompliance with the federal REAL ID Act of 2005 sponsored by Representative Jim Guest by a vote of 83 Ayes 69 Noes and 3 Present. On May 13, 2009 the Missouri Senate unanimously passed HB 361, 43 Ayes 0 Noes. Missouri Governor Jay Nixon signed this bill into law on July 13, 2009.[63]
For the 2012 Florida Legislative Session, an anti-REAL ID bill, HB 109 [64] and Senate companion S 220 [65] will be heard. Named the Florida Driver's License Citizen Protection Act[66], it would require discontinuation of several of the federally-mandated provisions of REAL ID and destruction of citizen's documents that had been scanned into the government database.
Some critics claim that the Real ID Act violates the Tenth Amendment to the United States Constitution as a federal legislation in an area that, under the terms of the Tenth Amendment, is the province of the states. Thus, Anthony Romero, the executive director of ACLU, stated: "... Real ID is an unfunded mandate that violates the Constitution's 10th Amendment on state powers, destroys states' dual sovereignty and consolidates every American's private information, leaving all of us far more vulnerable to identity thieves.".[67]
Former Republican U.S. Representative Bob Barr wrote in a February 2008 article: "A person not possessing a Real ID Act-compliant identification card could not enter any federal building, or an office of his or her congressman or senator or the U.S. Capitol. This effectively denies that person their fundamental rights to assembly and to petition the government as guaranteed in the First Amendment." [68]
The DHS final rule [12] regarding implementation of the Real ID Act discusses a number of constitutional concerns raised by the commenters on the proposed version of this rule. The DHS rule explicitly rejects the assertion that the implementation of the Real ID Act will lead to violations of the citizens' individual constitutional rights (page 5284 of the DHS rule in the Federal register). In relation to the Tenth Amendment argument about violation of states' constitutional rights, the DHS rule acknowledges that that these concerns have been raised by a number of individual commenters and in the comments by some states. The DHS rule does not attempt to rebuff the Tenth Amendment argument directly, but says that the DHS is acting in accordance with the authority granted to it by the Real ID Act and that DHS has been and will be working closely with the states on the implementation of the Real ID Act (pages 5284 and 5317 of the DHS final rule in the Federal Register).
On November 1, 2007, attorneys for Defenders of Wildlife and the Sierra Club filed an amended complaint in U.S. District Court challenging the 2005 REAL ID Act. The amended complaint alleges that this unprecedented authority violates the fundamental separation of powers principles enshrined in the U.S. Constitution. The environmental groups argue that Congress unconstitutionally delegated the power to the Department of Homeland Security (an appointed Executive branch not accountable to the public) to pick and choose which laws will apply to border wall construction. On December 18, 2007, Judge Ellen S. Huvelle rejected the challenge.[69][70]
On March 17, 2008, attorneys for Defenders of Wildlife and the Sierra Club filed a Petition for a Writ of Certiorari with the U.S. Supreme Court to hear its "constitutional challenge to the Secretary’s decision waiving nineteen federal laws, and all state and local legal requirements related to them, in connection with the construction of a barrier along a portion of the border with Mexico".[71][72] They question whether the preclusion of judicial review amounts to an unconstitutional delegation of legislative power and whether the "grant of waiver authority violates Article I’s requirement that a duly-enacted law may be repealed only by legislation approved by both Houses of Congress and presented to the President".[71] On April 17, 2008, numerous amicus briefs "supporting the petition were filed on behalf 14 members of Congress, a diverse coalition of conservation, religious and Native American organizations, and 28 law professors and constitutional scholars".[73][74][75]
Many immigrant and civil rights advocates feel that the changes related to evidentiary standards and the immigration officers' discretion in asylum cases, contained in the Real ID Act, would prevent many legitimate asylum seekers from obtaining asylum.[76] .[77] Thus a 2005 article in LCCR-sponsored "Civil Rights Monitor" says: "The bill also contained changes to asylum standards, which according to LCCR, would prevent many legitimate asylum seekers from obtaining safe haven in the United States. These changes gave immigration officials broad discretion to demand certain evidence to support an asylum claim, with little regard to whether the evidence can realistically be obtained; as well as the discretion to deny claims based on such subjective factors as "demeanor". Critics said the reason for putting such asylum restrictions into what was being sold as an anti terrorism bill was unclear, given that suspected terrorists are already barred from obtaining asylum or any other immigration benefit. " .[76]
Similarly, some immigration and human rights advocacy groups maintain that the Real ID Act provides an overly broad definition of "terrorist activity" that will prevent some deserving categories of applicants from gaining asylum or refugee status in the United States.[78] A November 2007 report by Human Rights Watch raises this criticism specifically in relation to former child soldiers who have been forcibly and illegally recruited to participate in an armed group.[79]
A previous version of the Real ID Act (H.R. 418) would have prohibited any judicial review of Homeland Security law waivers for barrier construction. Critics maintained that this would elevate the Secretary of Homeland Security above the law, and this language was changed in the final version (H.R. 1268).
But even the limited restrictions on judicial review remain controversial. Supporters of the Real ID Act see a need to restrain so-called "judicial activism" so needed barriers can be built. Opponents assert that the restrictions on judicial review may exceed the authority Congress has to regulate the courts (as spelled out in Article Three of the United States Constitution), and violate the principle of separation of powers.
Many privacy rights advocates charge that by creating a national system electronically storing vast amounts of detailed personal data about individuals, the Real ID Act increases the chance of such data being stolen and thus raises the risk of identity theft.[80] [81] [82] [83] The Bush administration, in the DHS final rule [12] regarding the Real ID Act implementation, counters that the security precautions regarding handling sensitive personal data and hiring DMV workers, that are specified in the Real ID Act and in the DHS final rule, provide sufficient protections against unauthorized use and theft of such personal data (pages 5281-5283 of the DHS final rule in the Federal Register).
Another privacy concern raised by the privacy advocates, such as the Electronic Frontier Foundation, is that the implementation of the Real ID Act will make it substantially easier for the government to track numerous activities of Americans and conduct their surveillance.[84] [85]
Supporters of the Real ID Act, such as a conservative think-tank the Heritage Foundation, dismiss this criticism under the grounds that states will be permitted (by law) to share data only when validating someone's identity.[84]
The Data Privacy and Integrity Advisory Committee, which was established to advise the Department of Homeland Security on privacy-related issues, released a statement regarding the Department of Homeland Security's proposed rules for the standardization of state driver licenses on May 7, 2007.[86] The committee stated that "Given that these issues have not received adequate consideration, the Committee feels it is important that the following comments do not constitute an endorsement of REAL ID or the regulations as workable or appropriate," and "The issues pose serious risks to an individual’s privacy and, without amelioration, could undermine the stated goals of the REAL ID Act."
On February 28, 2007 U.S. Senator Daniel Akaka [D-HI] introduced the Senate Bill S. 717, "Identification Security Enhancement Act of 2007", subtitled: "A bill to repeal title II of the REAL ID Act of 2005, to restore section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004, which provides States additional regulatory flexibility and funding authorization to more rapidly produce tamper- and counterfeit-resistant driver's licenses, and to protect privacy and civil liberties by providing interested stakeholders on a negotiated rulemaking with guidance to achieve improved 21st century licenses to improve national security".[87] The bill is co-sponsored by Senators Lamar Alexander [R-TN], Max Baucus [D-MT], Patrick Leahy [D-VT], John E. Sununu [R-NH], Jon Tester [D-MT]. The bill was read twice and referred to the Senate Committee on the Judiciary on February 28, 2007.
A similar bill was introduced on February 16, 2007 in the U.S. House of Representatives by Rep. Thomas Allen [D-ME], with 32 co-sponsors (all Democrats). The House bill, H.R. 1117, "REAL ID Repeal and Identification Security Enhancement Act of 2007", is subtitled: "A bill to repeal title II of the REAL ID Act of 2005, to restore section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004, which provides States additional regulatory flexibility and funding authorization to more rapidly produce tamper- and counterfeit-resistant driver's licenses, and to protect privacy and civil liberties by providing interested stakeholders on a negotiated rulemaking with guidance to achieve improved 21st century licenses to improve national security." [88] On May 23, 2007, the House Oversight and Government Reform Committee referred H.R. 1117 to the Subcommittee on Government Management, Organization, and Procurement.
A more limited bill, S. 563, that would extend the deadlines for the states' compliance with the Real ID Act, was introduced on February 13, 2007 in the U.S. Senate by Sen. Susan Collins [R, ME], together with Senators Lamar Alexander [R, TN], Thomas Carper [D, DE], Charles Hagel [R, NE], and Olympia Snowe [R, ME].[89]