If you’ve ever raised children, you’re familiar with defenses like: “I didn’t hit my brother. My bat did!” We keep kids in whiffle ball until they understand culpability a little better. The upcoming deadline for compliance with our national ID law, REAL ID, has a children’s logic to it. The deadline will not change, we are told. It is just enforcement that is going to give way. American travelers will almost certainly be able to use the same IDs on May 8 of this year that they did on May 6. The one ID-checking federal agency that’s telling has already said it’s not going to enforce REAL ID for two more years.
But the opacity and arguable illegality make me want to put the Department of Homeland Security (DHS) and Transportation Security Administration (TSA) in time-out. They are toying with the REAL ID statute and administrative law to cow Americans into joining a national ID system that we don’t need and shouldn’t have.
I’ve published plenty of material over the years, including a book, on why we are worse off with a national ID. “It’s un-American” is shorthand for the deep inconsistency between a weak security tool like a national ID and our traditions of distributed power, liberty, and individualism coupled with responsibility.
But ever since the REAL ID law passed in 2005, repealing more sensible identity security legislation suggested in passing by the 9/11 Commission, DHS has used deadline after threatened deadline to push states and people into line—specifically the national ID line and the line at the DMV.
As I wrote earlier this year, the present “phased enforcement” ploy is not something the law actually allows. But there are further defects and curiosities in the current process that raise questions and might even undercut REAL ID enforcement entirely.
For starters, the TSA published the new regulation on January 14 and a copy was delivered to Congress on January 22. The Government Accountability Office noted that a major rule (of which this is one) must have a 60-day delay between its receipt by Congress and its effective date. This one does not. But that doesn’t do much more than cast an administrative odor. There is a long window for congressional disapprovals, and this regulation is a good candidate for that.
The new regulation also says ID-checking agencies must “determin[e] that a phased enforcement plan is appropriate in consideration of relevant factors including security, operational feasibility, and public impact.” They must coordinate with DHS and make their plans available on their webpages. They must achieve full enforcement by May 5, 2027—two years down the road. DHS “will make publicly available on the DHS REAL ID webpage a list of agencies that have coordinated phased enforcement plans with DHS.”
The Nuclear Regulatory Commission (NRC) is about the only ID-checking agency other than TSA that matters. They kind of did the things TSA instructs. There is an “Information Notice” on their website that covers most of the bases above. It says that the NRC will indeed achieve full enforcement by May 5, 2027. In fact, they aren’t going to do any enforcement until May 5, 2027. Enforcement at NRC is being kicked down the road, just the same as the deadline always has been!
So far as I can tell, though, TSA hasn’t done any of the things it required of itself in the regulation. I haven’t found a determination about the feasibility of phased enforcement anywhere, the phased enforcement plan is not on its webpage, and, again, so far as I can tell, DHS has not made a list of coordinating agencies—including TSA—available on its website.
Absent these notices, the public cannot plan responses. (That benefits the agency by keeping the deadline scare alive.) Because such rules bind the public, I think they are “legislative rules” in the parlance of administrative law, which generally need notice-and-comment rulemaking. I don’t think “phased enforcement plans” can be issued via subregulatory guidance such as the NRC letter or any similar publication DHS or TSA may issue outside of normal administrative procedures. If phased enforcement is legal, I think it requires rulemaking (beyond the rulemaking saying to do phased enforcement).
Leaving childhood and the battering of our siblings behind, we study and strive. Pursuing a legal education and a career in policy analysis, one might expect to know what is going on with a policy one has followed for decades. Is the REAL ID law in collapse? Is administrative law in collapse? Maybe both!
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