How 6 CFR 37 (REAL IDs) exhibits…federalism

The United States, like some other countries, reserves some responsibilities to lower subdivisions of the country, in this case the states. This concept is enshrined in the 10th Amendment to the Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The 10th Amendment basically means that unless the Constitution explicitly speaks on a matter, the states can do whatever they want. However, the Federal government still has ways of making the states obey its will.

States are NOT mandated to issue REAL IDs

If you look at the Code of Federal Regulations, Title 6, Volume 1, Chapter I, Part 37 (one online source here), you will see the official laws that govern the issuance of REAL ID Driver’s Licenses and Identification Cards. Part 37 is divided into several subparts:

  • General.
  • Minimum Documentation, Verification, and Card Issuance Requirements.
  • Other Requirements.
  • Security at DMVs and Driver’s License and Identification Card Production Facilities.
  • Procedures for Determining State Compliance.
  • Driver’s Licenses and Identification Cards Issued Under section 202(d)(11) of the REAL ID Act.

A pretty comprehensive list here. But that very first section, “General,” begins with the following:

Subparts A through E of this part apply to States and U.S. territories that choose to issue driver’s licenses and identification cards that can be accepted by Federal agencies for official purposes.

Note the word “choose,” and the phrase “accepted by Federal agencies for official purposes.” In essence, it is incorrect to say that states are MANDATED by law to issue REAL IDs. States have the power to choose NOT to issue REAL IDs, and the Federal government has no Constitutional power to force them to do so.

So many states DIDN’T issue REAL IDs

And for many years, many states of various political persuasions adopted that view. Whether “red” or “blue,” many states held to the belief that REAL ID was an unconscionable imposition on state sovereignty, and that Bush or Obama or Trump didn’t have the power to tell states what to do with their state driver’s licenses.

I ran into this personally in my proposal work. There was a brief period of time in which MorphoTrak was bidding on driver’s license opportunities (thus competing with our sister company MorphoTrust), and I remember reviewing a Request for Proposal (RFP) issued by one of the states. I won’t reveal the state, but the opening section of its RFP made very clear that the state was NOT asking vendors to implement Federal REAL ID regulations, or asking vendors to help the state issue REAL IDs.

So some states declined to participate in REAL ID efforts for years…and years.

And the Federal government couldn’t dictate that states issue REAL IDs.

So the Federal government said that states don’t HAVE to issue REAL IDs, but…

But the Federal government COULD dictate which IDs could be “accepted by Federal agencies for official purposes.”

  • Accepted IDs included passports, Federal government-issued identification cards, various other national IDs…and REAL IDs issued by the states. Other IDs issued by the states were not acceptable.
  • Official purposes included visiting a military base (Federal control, not state control), visiting your Congressperson’s office (Federal control, not state control)…and the big one, entering the secure areas of an airport (again, Federal control, not state control).
Transportation Security Administration Checkpoint at John Glenn Columbus International Airport. By Michael Ball – Own work, CC0, https://commons.wikimedia.org/w/index.php?curid=77279000

So it’s pretty simple. If you want to get on a plane, even for a domestic flight, you have to pay $100 or so to get a passport. Well, unless your state happens to be one of the states that issues REAL IDs.

(Now large states with multiple major cities such as California and Texas could conceivably try to get around this by setting up a whole system of intrastate airports that only flew within the state, but that would be costly.)

Even with this, the REAL ID implementation date has been delayed several times (most recently due to COVID), but as of today, all 50 states and most U.S. territories are finally issuing REAL IDs, including the unnamed state (and others) that refused to even consider issuing REAL IDs a decade ago.

And that, my friends, is how the Federal government gets what it wants.

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