Fundamental Astuteness

The Essence of Astuteness: Non-Partisan Intellectual Honesty

Gov. Mark Sanford and the REAL ID Act

with 2 comments

 Jim Harper, Director of Information Policy Studies at the Cato Institute, had a great peice on the REAL ID Act.

“In the next few days South Carolina’s Gov. Mark Sanford will decide whether or not the citizens of South Carolina should allow the federal government to bully them into adopting national identification.

In spite of its growing unpopularity, federal legislators are still pushing an arguably unconstitutional national ID law called the REAL ID Act.

The governor now has a chance to stand up for the people of South Carolina, and help restore some important constitutional principles.

States are sovereign entities, not administrative outposts of the national government.

Last year, South Carolina’s legislature passed a law barring the state from implementing REAL ID. This particular federal boondoggle would put basic identity documents into nationally accessible government databases and promote tracking of law-abiding citizens like they were criminals on parole.

But the U.S. Department of Homeland Security now threatens to make air travel and entry into some federal buildings inconvenient if Gov. Sanford doesn’t pretend that South Carolina might still implement the federal law. They want him to request an extension of the May 11 statutory deadline for compliance.

The case resembles a similar instance of strong-arming in the early 1990s, when Congress passed a law requiring the state of New York to dispose of radioactive waste according to federal prescriptions or “take title” to the waste. If state officials didn’t do what the federal government said, they would have the burden of owning all this waste dumped in their laps.

In 1992, the Supreme Court ruled on the case, issuing the first in an important line of decisions that is beginning to restore balance to the state-federal relationship. The federal law violated the constitutional structure of our governmental system, the court said, by attempting to “commandeer” the state into implementing a federal program.

States are sovereign entities, not administrative outposts of the national government. Allowing the federal government to commandeer states would blur lines of responsibility, requiring state officials to raise taxes and make unpopular decisions on behalf of federal officials who really should be accountable. If the federal government wanted to take care of radioactive waste, the federal government should have figured out how to do it and how to pay for it.

The same applies to the national ID program in REAL ID. If the federal government wants to have a national ID system, the federal government should figure out how to do it and how to pay for it. Congress never even had a hearing to assess the costs, the complexities, or the privacy consequences of the REAL ID Act, much less whether the United States should have a national ID system at all. Instead, the federal government is trying to foist all this on the states.

If South Carolina doesn’t fall in line, the Department of Homeland Security threatens to attack South Carolinians’ right to travel.

These problems will be dumped in the laps of South Carolina’s leaders, like the radioactive waste the feds wanted to dump on New York.

Another way to look at it is as a form of hostage-taking. If you don’t implement our national ID law, the federal government is saying to Gov. Sanford, we will make life miserable for the citizens of your state.

That’s unfair, and it’s probably unconstitutional.

Federal politicians didn’t give up on trying to commandeer state governments after the radioactive waste case. In a later case, Congress tried directly, requiring state officials to implement the Brady gun control law. The court struck that down, too.

With the REAL ID Act, the feds are at it again. The governor should use this opportunity to seek another Supreme Court ruling that respects the state-federal balance.

Instead of backing down and abandoning his principled approach to government, the governor should sue the Department of Homeland Security under the 10th Amendment.

In standing up for the residents of South Carolina, he has a good chance to restore constitutional principles for all states. His constituents are not pawns in a power game.

And the South Carolina government is not a bureaucratic outpost of the federal government.”

So should Texas. As Texas Congressman John Culberson says, “Let Texans Run Texas”.


Written by Astuteness

March 31, 2008 at 9:32 am

2 Responses

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  1. In Texas, the concern now is that the battle of a national ID taking over/merging with states drivers licenses has shifted from REAL ID to what they call the “Witty card”, or the Western Hemisphere Travel Initiative (WHTI). Under WHTI, states can turn their drivers licenses into limited passports, good for crossing the land border with Mexico. What the states have to do in return for this privilege is let the feds put a RFID spy chip into the state licenses. While opposition to REAL ID has been intense, the WHTI cards have mostly flown under the radar. The feds have also decidided that these WHTI cards must also be REAL ID compliant, so they will essentially be REAL ID but just with a different name. Arizona has thumbed its nose at this card, but Texas is going back and forth. Under the SPP, the feds would like Canada, Mexico, and US residents to essentially end up carrying the same type of RFID enabled border crossing card, and that now looks to be more like a WHTI card than a REAL ID one. We already have international groups influencing the technology and biometrics of our passports, we don’t need that with our licenses now too.


    March 31, 2008 at 12:19 pm

  2. “Congress never even had a hearing to assess the costs, the complexities, or the privacy consequences of the REAL ID Act, much less whether the United States should have a national ID system at all.”

    Whoa!!! The people may be under-informed on issues, but to have Congress that ignorant is a little much, isn’t it? =|

    “States are sovereign entities, not administrative outposts of the national government.”

    Yes, yes, yes. Beautiful point. May we be willing to accept the responsibility that goes with accepting that sovereignty.

    Good post. Thanks!


    April 1, 2008 at 10:16 am

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