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Courts could be the next battlefield in a growing rebellion among states against the federal government’s push for national driver’s license standards, dubbed by critics national identity cards or internal passports. Five states, through legislation or resolutions, refuse to implement a standard ID for drivers called for in the Real ID Act of 2005. And 25 more states are considering it. Washington state approved a law last month authorizing its attorney general, Rob McKenna, to initiate a constitutional challenge to the Real ID Act. The five states so far refusing to cooperate in the licensing are Arkansas, Idaho, Maine, Montana and Washington. State officials, trade associations, and civil liberties and immigration rights groups have also raised a variety of untested legal problems, including privacy issues, due process equal protection concerns, and the potential for discrimination claims that could end up in the courts. States may bring challenges to the law as an unfunded mandate, or as “commandeering,” essentially a dual sovereignty principle that state officials can’t be commandeered to enforce federal law, according to Luis Figueroa, legislative attorney with Mexican-American Legal Defense and Education Fund in San Antonio. The U.S. Supreme Court struck down, as unconstitutional commandeering, a portion of the Brady Handgun Violence Protection Act in Printz v. U.S., 521 U.S. 898 (1997). It required state law enforcement officials to perform background checks on prospective gun purchasers. The Real ID Act was attached without debate or hearings to an Iraq war appropriation and tsunami relief measure in 2005. It asks states to create a document, either driver’s license or nondriver ID, that every U.S. resident would be required to show to board planes or enter federal facilities. The driver’s licenses of states that refuse would not be accepted for access. Michael Chertoff, secretary of the Department of Homeland Security (DHS), announced in March that states could receive a 19-month extension to comply if they can’t meet the May 2008 deadline to issue millions of new licenses. In 2004, Congress initially created a commission to set minimum standards for state driver licensing when it was discovered that one of the Sept. 11, 2001, airplane hijackers received a Virginia driver’s license legally. But Congress scrapped the commission and stripped the law of privacy protections a year later with the enactment of Real ID. DHS estimates that it may cost states $23 billion over 10 years to implement the proposed guidelines, although Congress authorized a scant $40 million for it so far. One requirement of licenses would be a bar-code swipe strip on the back to allow authorities to verify ID and authenticity. “If you’re tracking a fugitive, that’s great,” said Matthew Dunlap, Maine’s secretary of state and a member of the original 2004 panel. “But it scares the living daylights out of people that the government is going to watch every move they make,” he said. “The fact that the secretary of the Department of Homeland Security says it is not a national identity card does not make it less of one.” Consequences “I’m sure you have no difficulty finding people who do not like the Real ID Act,” said Russ Knocke, spokesman for DHS in Washington. “As we get closer to compliance, citizens of those states [that refuse to comply] are going to realize the consequences of noncompliance and express displeasure with state leadership,” he said. “The Real ID might present some challenges for states. It is going to be a little burdensome. But I can’t imagine a state official anywhere that wants to find themselves before a future 9/11 commission explaining that their driver’s license was part of a plot that resulted in an attack against the homeland,” Knocke said. Dunlap countered: “I consider it passing off a federal job to the states. It is a complete surrendering of the obligation to protect the border, in violation of the 10th Amendment. They are asking states to do immigration law.” Civil liberties groups, including the American Civil Liberties Union, say that legal dangers are looming for the law, including privacy rights, the potential of discrimination and unequal treatment. “There are clear constitutional concerns, free speech and free assembly,” said Tim Sparapani, legislative counsel to the American Civil Liberties Union. “How can you redress a grievance with the government if you can’t get in the building?” he asked. “The most disturbing thing about the proposed regulations, they specifically say the Department of Homeland Security says it can’t protect privacy under this law,” said Ari Schwartz, deputy director of the Center for Democracy and Technology in Washington. Any potential litigation must wait for the long-delayed, proposed regulations to be implemented. “States don’t yet have standing until final regulations tell them what they have to do,” Sparapani said. “There is no concrete injury yet.” In Washington state, the concern is protecting the privacy of state residents and guaranteeing that the federal government pays for [the new licensing], said Antonio Ginatta, an executive policy adviser to Washington Governor Christine Gregoire in Olympia. “There have been no conversations yet on moving forward with a legal strategy,” he added. Many states still hope for a political fix, and there is a bill in Congress to repeal the national driver licensing standards from the Real ID Act. “It is still largely a political ballgame because of the groundswell of state opposition,” said Brenda Nordlund, attorney for Montana’s Department of Motor Vehicles. As a harbinger of potential claims, Figueroa of the Mexican-American Legal Defense and Education Fund pointed to a lawsuit filed against the Maryland Motor Vehicles Administration in 2005 by 14 aliens alleging due process violations in denial of licenses. A group opposed to the issuing of licenses to aliens asked to intervene on the side of the state to argue that granting licenses would violate the Real ID Act. That case is currently on appeal to the Maryland Court of Special Appeals. 9-11 Families for a Secure America v. Echalar, No. 06-812. The ruling on intervention may resolve who has the right to seek enforcement of Real ID provisions in court and constitutional questions surrounding illegal aliens receiving licenses, according to Michael Hethmon of the Immigration Reform Law Institute, an attorney for the 9-11 Families group. Another criticism of the act focuses on the creation of a standard naming scheme, requiring first, middle and last names printed on licenses, and verification of the names by the state. That does not accord with common law traditions or existing statutes, according to Joan Friedland, immigration policy director and attorney with National Immigration Law Center. Traditionally, people can use any name so long as it is not for fraud, she said. The proposed regulations do not account for people who are adopted with different names on birth certificates, or elderly people born at home with no records, or whole categories of aliens whose countries no longer exist and whose records can’t be recovered, according to Friedland. She expressed frustration that the only public town-hall hearing on the proposed regulations was just held in Sacramento, Calif., after the proposals have been issued and with just days left for public input. Ironically, none of the rules applies to the State Department, which issues travel documents, according to Maine’s Dunlap. “The 9/11 hijackers did not get into the United States by using driver’s licenses, but with visas issued by the State Department,” he said.

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