Implementing the REAL ID Act: Intergovernmental Conflict and Cooperation in Homeland Security Policy

Abstract

This article examines implementation of the REAL ID Act of 2005, a post-9/11 measure intended to make driver’s licenses more secure. I take the opportunity, fifteen years after the Act’s passage and approaching a key October 2020 deadline, to analyze and explain how federal officials overcame obstacles to REAL ID implementation, especially resistance from elected state officials. I conclude that the role of administrative officials within the Department of Homeland Security and their ability to work with administrative officials in state Department of Motor Vehicle offices was critical to overcoming state resistance and leading states to come into alignment with REAL ID requirements. A key lesson is that overcoming state–federal conflict in policy implementation is possible when administrative officials at the state and federal level are key actors and can collaborate and perceive common interests. This analysis demonstrates the importance of direct interaction between federal and state administrative officials in program implementation.

In recent years, news headlines have proclaimed “No Fly Zone: Why TSA [Transportation Security Authority] soon won’t take some states’ driver’s licenses as ID,” “Most Americans will need a new ID to fly, starting in October,” and “Americans’ readiness for Real ID in doubt as 2020 deadline nears” (Schouten 2015; Lazo 2019; Hetter 2020). These articles were all referring to the upcoming implementation of the final phase of the REAL ID Act of 2005.

The goal of the REAL ID Act is to make state driver’s licenses and ID cards (which are identification cards that states issue to non-drivers) more secure, less susceptible to fraud, and more reliable as a form of identification. By virtue of the law, states have to meet certain issuance and production standards in order for federal agencies to accept their driver’s licenses and ID cards for identification for official purposes, such as accessing federal facilities, entering nuclear power plants, and boarding federally regulated commercial aircraft. Federal agencies will not accept noncompliant documents for official purposes from states that do not meet the standards (DHS 2015b).

Recent interest in the REAL ID Act stems from the real-life consequences of the accelerating implementation of the program, especially in view of an approaching October 1, 2020 enforcement deadline. This is in stark contrast to the situation just several years earlier when some people thought that “REAL ID is dead” (Harper 2014), because of the strong opposition it generated from many state governors and legislatures and on account of delays in the program’s implementation.

While it is too early to declare the program’s implementation a success, it is nevertheless important to examine the reasons for the program’s continued implementation despite obstacles. As I will argue, part of the explanation lies in the work of a small office inside the Department of Homeland Security (DHS). Instead of focusing on state governors and legislatures that were often critical of REAL ID, the REAL ID Program Office focused on working directly with state Department of Motor Vehicles (DMVs) to implement the REAL ID standards. Success came about in part because of this direct coordination between administrative officials in an office within DHS and state DMV officials. Success also came about in part because DHS officials were willing to grant flexibility in various ways, not only by issuing a series of timing extensions but also by counting partial progress toward implementation. In addition, state DMV officials came to view their interests (making driver’s licenses more secure and reducing fraud) as aligned with the goals of the Act and concluded that the burdens and costs were not as great as initially feared. Developing a strong working relationship with the American Association of Motor Vehicle Administrators (AAMVA) also proved key for making progress on REAL ID implementation.

This analysis of REAL ID Act implementation in the face of significant obstacles has broader implications for our understanding of federal–state interactions and negotiations in a polarized era. One lesson to emerge from this study is that overcoming state–federal conflict in policy implementation is possible when administrative officials at the state and federal level are key actors and can collaborate and perceive common interests. Scholars have reached similar conclusions when studying implementation of the Affordable Care Act (ACA) (Haeder and Weimer 2013), among other federal policies. This analysis of the REAL ID Act provides confirmation of the importance of direct interaction between federal and state administrative officials in fostering implementation, along with offering additional insights that are particular to the REAL ID case.

In investigating what enabled a significant policy to survive, this study of REAL ID also contributes more generally to research about the durability of policy reforms and the ways obstacles to policy durability are overcome (Patashnik 2008). This analysis also contributes to recent research that analyzes occasions when state officials object to federal policies and considers how state government opposition has been overcome (Karch and Rose 2019). After analyzing policies such as Medicaid and No Child Left Behind, Andrew Karch and Shanna Rose set out future avenues for research and made the point that the REAL ID Act is calling out for further study along the lines of what they undertook for other federal programs (Karch and Rose 2019, 208–09). My research builds on their analysis and their call for research in this particular homeland security policy area.

This analysis also contributes to scholarly understanding of REAL ID implementation in particular. Prior studies have analyzed state opposition to REAL ID and determinants of state opposition and compliance to the Act. Priscilla Regan and Christopher Deering (2009) contributed to a growing body of work on state resistance to federal initiatives. They found that unfunded mandates, state sovereignty, and privacy concerns all posed challenges to implementation of REAL ID by the states. They also found that social advocacy coalitions, such as the American Civil Liberties Union (ACLU), and state associations, such as the National Governors Association (NGA), the National Conference of State Legislatures (NCSL), and AAMVA, played important roles in facilitating and leading state resistance. Bradley, Schreckhise, and Chand (2017, 885) set out to explain interstate variation in compliance with REAL ID, with a particular focus on the “attitudes of those in agencies tasked with implementing programs.” They found that state DMV directors’ personal preferences about the law were correlated with states’ willingness to pass legislation opposing compliance with it. My contribution in this study is to focus on the interaction between federal and state officials and in a way not captured by prior accounts of REAL ID implementation.

As part of my research, I conducted dozens of semi-structured in-person interviews with current and former high-level DHS officials, as well as non-DHS experts on REAL ID and identification document security. The quotes contained in this article come primarily from interviews conducted between June 2013 and November 2015 with five interviewees, whose anonymity I promised to maintain: a senior official in DHS (2015a); a former counsel to the National Commission on Terrorist Attacks Upon the United States (2013), also known as the 9/11 Commission; a lobbyist at an influential conservative advocacy group (2013); a policy analyst at the Heritage Foundation (2013), an influential conservative think tank; and a REAL ID policy expert (2014, 2015).

The REAL ID Act of 2005: Origins and Requirements

The origins of the REAL ID program lie in the aftermath of the September 11, 2001 terrorist attacks. The nineteen hijackers obtained at least thirty U.S. driver’s licenses and ID cards between them, some by fraud. The 9/11 Commission established that the hijackers had methodically obtained U.S. identification documents to make their travels and transactions as inconspicuous as possible (National Commission on Terrorist Attacks Upon the United States 2004, 390). Senator Dick Durbin (D-IL) was among the first to emphasize the need to standardize identification credentials. In December 2001, Durbin told Congress:

I am certainly not asserting that the September 11 attacks would have been avoided had the terrorists not had these driver’s licenses. Clearly, there is little direct connection between the cards these evil men carried and the ungodly deeds that they carried out.

But what these driver’s licenses—which have now become the most widely used form of personal ID in the country—gave these terrorists was the cover of legitimacy that allowed them to walk around and mingle into American society without being detected.

A driver’s license is a key that opens many doors. In America, anyone who can produce a valid driver’s license can access just about anything. (…) If you can produce a driver’s license, we just assume that you are legitimate. (Congressional Record, December 20, 2001, S13777)

The 9/11 Commission emphasized the role document security can play in terrorism prevention and recommended that the federal government should set standards for the issuance of birth certificates and driver’s licenses (National Commission on Terrorist Attacks Upon the United States 2004, 390). The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), which included some of the 9/11 Commission recommendations, required the federal government to issue regulations with respect to minimum standards for federal acceptance of driver’s licenses and ID cards, but states were to retain their own criteria concerning the categories of individuals that were eligible to obtain a driver’s license or ID card (Public Law No. 108-458). Prior to IRTPA, there were no national standards with respect to driver’s licenses and ID cards; standards were determined on a state-by-state basis.

In May 2005, Congress passed the REAL ID Act. Championed by Representative James Sensenbrenner (R-WI), the Act replaced IRTPA’s negotiated rulemaking provision with a stricter set of federal requirements for the issuance of driver’s licenses and identification cards. REAL ID does not directly impose federal standards with respect to states’ issuance of driver’s licenses and ID cards. Rather, REAL ID establishes minimum standards for the production and issuance of state-issued driver’s licenses and ID cards. Therefore, states need to adopt such minimum standards to have their driver’s licenses and ID cards recognized by federal agencies for official purposes, such as accessing federal facilities, entering nuclear power plants, and boarding federally regulated commercial aircraft (Public Law No. 109-13).

The Act contains provisions relating to improved security for driver’s licenses and state identification cards, and instructions for states that do not comply with its provisions. As DHS describes it, “REAL ID is a coordinated effort by the states and the federal government to improve the reliability and accuracy of state-issued identification documents, which should inhibit terrorists’ ability to evade detection by using fraudulent identification” (DHS 2015b). The Act covers fifty-six jurisdictions: fifty states, the District of Columbia, and five U.S. territories (Puerto Rico, US Virgin Islands, Guam, American Samoa, and Northern Marianas).¹

To be compliant with REAL ID, jurisdictions have to meet all thirty-nine REAL ID standards or benchmarks. Some experts put the number of standards at forty-three; the four additional standards are largely administrative in nature and have to do with jurisdictions expressing commitment to REAL ID implementation. REAL ID standards require that before a state can issue a driver’s license or an ID card, it must verify several things with the agencies that issued the documents that applicants present in the application process for a driver’s license or an ID card. REAL ID requires states to verify the validity of the supporting documents, such as birth certificates and passports, presented by the applicant with the documents’ issuing agencies. States also have to verify a Social Security Number (SSN) or the individual’s ineligibility for a SSN. The final regulations, issued in 2008, require states to “make reasonable efforts” to ensure that applicants do not have multiple REAL ID-compliant documents issued under different identities, and require the states to verify documents presented via electronic validation systems “as they become available” (Tatelman 2008, 22–23).

In accordance with REAL ID, a state shall require, before issuing a REAL ID-compliant license or card to a person, valid documentary evidence that the person has a lawful status in the United States. Noncitizens are eligible for REAL ID-compliant licenses and cards if they can present evidence that they are lawfully present in the United States, are in temporary protected status, or have approved deferred action status. Importantly, states can still issue driver’s licenses and ID cards that are not compliant with REAL ID. The REAL ID Act requires only that the noncompliant documents clearly state so on the face of the document and use a unique color identifier or design to alert officials not to accept those documents for federal identification or for any official purpose (Tatelman 2008, 30).

The final regulations require states to maintain a database that, at a minimum, contains all data fields printed on the face of the driver’s license or ID card (such as the holder’s full legal name). The database should also contain all data fields included in the machine-readable zone but not printed on the card and the driver’s history including points and suspensions (Tatelman 2008, 26). REAL ID authorizes grants to assist states in implementing the requirements. To be eligible to receive such grants, states shall provide electronic access to their databases to all other states. Contrary to the claims of some commentators, REAL ID does not create a federal database. Notably, REAL ID does not require or even suggest the use of radio frequency identification chips. In fact, REAL ID also does not require sophisticated biometric technology; it requires only that all applicants for REAL ID-compliant documents be subject to digital facial image capture. A digital facial image can be used in biometric matching only when it is subjected to facial recognition analysis.

Of the thirty-nine benchmarks, jurisdictions have to meet eighteen most important benchmarks for the so-called material compliance. These eighteen benchmarks are primarily concerned with security standards. They include a mandatory facial image capture and retention, and requirements for documentation of date of birth, SSN, address, and lawful status. The standards also include improvements in the security of the license-issuing process, such as conducting name- and fingerprint-based criminal history and employment eligibility checks on all covered DMV employees.

Implementation

May 11, 2008 was the original deadline after which federal officials were not to accept state driver’s licenses and ID cards for official purposes. Faced with opposition from many states, DHS granted multiple extensions. In December 2013, DHS announced a phased enforcement plan for the REAL ID Act. The enforcement of the first three phases began between April 2014 and October 2015. Phases One, Two, and Three covered restricted areas for DHS headquarters in Washington, DC, restricted areas for all federal facilities and nuclear power plants, and semi-restricted areas for most federal facilities, respectively (DHS 2015b). Now, visitors to a federal facility who have licenses from a noncompliant state need to bring an alternate form of government-issued photo ID—such as a passport, passport card, or federal employee, military, or veteran ID card (Interagency Security Committee 2015, 4).

Phase Four, for boarding federally regulated commercial aircraft was to begin “no sooner than 2016.” In that last phase, a person holding a driver’s license or ID card from a noncompliant state will only be able to use it in conjunction with a second form of ID (DHS 2015b). Not having a REAL ID-compliant document will not prevent individuals from flying.

However, as discussed in more detail below, in January 2016, DHS announced that it would not be until January 22, 2018 that passengers with a driver’s license issued by a state that is still not compliant with the REAL ID Act (unless that state has been granted an extension) would need to show an alternative form of acceptable identification for domestic air travel. Starting October 1, 2020, every air traveler will need a REAL ID-compliant license, or another acceptable form of identification, for domestic air travel. Put differently, the October 2020 deadline represents the date that DHS will switch from enforcement based on state of issuance to enforcement based on individual cards (Federal Register 2014). DHS distinguishes “state-based” enforcement and “card-based” enforcement as follows:

Residents from a state/territory that is compliant with REAL ID or non-compliant with REAL ID, but has received an extension may continue to use their current state/territory-issued driver’s licenses and identification cards, regardless of whether the card is REAL ID compliant or not, for accessing federal facilities, including military bases. This is what we call “state-based” enforcement. Only the state that issued the resident’s license/ID must be either compliant or have been granted an extension in order for that resident to use that license/ID for accessing Federal facilities. The license/ID itself does not have to be REAL ID compliant until “card-based” enforcement begins on October 1, 2020. (DHS 2018c)

Further, DHS maintains that the 2020 deadline

should give residents of compliant states sufficient time to obtain licenses that satisfy the REAL ID standards, which presumably they will do in accordance with their normal renewal schedule. DHS also is establishing a single document enforcement date, as opposed to a bifurcated approach based on a person’s age, to accommodate the phased enforcement schedule and to simplify the implementation process for federal agencies’ access control personnel. Nothing in this rule affects the prohibition against federal agencies accepting licenses and identification cards issued by noncompliant states, pursuant to the REAL ID Act and in accordance to the phased enforcement schedule. DHS believes this rule balances the security objective of improving the reliability of identification documents presented for official purposes with the operational and cost burdens on compliant states and their residents. (Federal Register 2014)

DHS makes clear that phased REAL ID enforcement will not affect “access for activities directly relating to safety and health or life preserving services, to law enforcement, and to constitutionally protected activities, including legal and investigative proceedings. Existing agency policies will still apply.” The Act does not require individuals to present identification documents where it is not currently required to access a federal facility (such as to enter the Smithsonian Institution). The Act’s prohibitions do not affect uses of driver’s licenses or ID cards unrelated to official purposes as defined in the Act. For example, the Act does not apply to voting, registering to vote, and applying for or receiving federal benefits (DHS 2018b).

Opposition

Since President George W. Bush signed it into law in 2005, REAL ID has been highly contested among state legislatures, governors, and advocacy groups. Most important for purposes of this analysis, opponents have criticized the Act for being an unfunded mandate, where the federal government makes the rules and states bear the costs. For instance, when he served as governor of South Carolina, Mark Sanford (R) called REAL ID an “unfunded mandate,” as did many others, including Senator Lamar Alexander (R-TN), who nevertheless supported the law.

In 2006, the NGA, the NCSL, and AAMVA called for a delay in putting the Act into effect due to practical concerns (NGA, NCSL, and AAMVA 2006). Nevertheless, initially, there was relatively little activity at the state level, mainly because officials were uncertain as to what the implementation was going to necessitate in terms of cost and changes to state law. However, after DHS published a Notice of Proposed Rulemaking for REAL ID in March 2007, there was a dramatic increase in state responses to REAL ID.

By the end of April 2007, seven states, including Maine and Montana, enacted legislation opposing the law. Maine’s statute specifically prevented the state’s participation in a “national identification card” program, and state officials interpreted this statute as preventing compliance with REAL ID. Montana adopted one of the strongest noncompliance laws. On April 17, 2007, declaring “Hell, no,” Governor Brian Schweitzer (D-MT), signed one of the toughest anti-REAL ID state laws in the nation. The law not only barred state participation in the program but also directed the Montana Department of Justice and the motor vehicle administration to report to the governor any attempts by DHS to secure REAL ID implementation (Katel 2007, 388, 395; Tatelman 2008, 18).

Elected state officials’ resistance to REAL ID has been widespread. Governor Mike Huckabee (R-AR) opposed what he called the Bush administration’s encroachment on states’ rights. Governor Bill Richardson (D-NM) said he would challenge REAL ID on constitutional grounds. Political scientists Regan and Deering found that relatively less populous and less wealthy states, which are likely to be more impacted by unfunded mandates, and more conservative states, which are more likely to be concerned about retaining state control, were more likely to oppose REAL ID. States with stronger privacy orientations also were more likely to pass statutes or resolutions in opposition (Regan and Deering 2009).

Not all responses were negative. Many states passed laws enabling REAL ID compliance. Maryland, for instance, originally vocal in opposition to REAL ID, decided in 2008, with a push from Governor Martin O’Malley (D) in a late-night legislative session, to push REAL ID compliance language through the Maryland General Assembly (Kephart 2011, 9). Meanwhile, the law enjoyed support from a number of groups, including the Fraternal Order of Police, the International Association of Chiefs of Police, the Federation for American Immigration Reform, NumbersUSA, and the Coalition for a Secure Driver’s License.

Progress on State Implementation

Widespread state opposition, uncertainty about the repercussions in case of noncompliance, and DHS acceding to state requests for extensions and even granting extensions without requests, led critics of REAL ID—such as the ACLU—to declare in 2009 that the Act was “essentially dead” (ACLU 2009). Even many supporters were uncertain of the Act’s ability to survive in the early years of the law’s implementation.

As we approach the fifteen-year anniversary of the law’s passage, all states have made significant progress on REAL ID, to the point that the situation in early 2020 is dramatically different from that envisioned in prior years.

Progress toward state implementation can be tracked by taking stock of the record of state actions at various points in the 2010s. While no jurisdiction was compliant by the end of the Bush administration, twenty-four jurisdictions were compliant by the end of the Obama administration, twenty-two had extensions, two were under review, and eight were noncompliant. By November 2019, fifty-one jurisdictions were compliant and five had extensions or were under review, but all were set to start issuing compliant licenses by the summer of 2020. None were noncompliant.

Despite delays, the first wave of compliance activity occurred some five years after the Act’s passage. By January 2011, eleven jurisdictions were in compliance with all eighteen REAL ID material compliance benchmarks (Kephart 2011, 6). As Janice Kephart, a former counsel to the 9/11 Commission, noted in 2011: “Considering the political tenor of REAL ID, and the assault it suffered for years, it is unexpected that most states are quietly implementing the law. Pace and commitment still differ among the states, but (…) states are finding out implementation, on the whole, is not as expensive as they thought and is achievable.” States such as Delaware and Maryland, once committed, have completed implementation of the eighteen benchmarks needed to fulfill material compliance with the law within a year “for only twice the grant monies provided by the federal government” (Kephart 2011, 2).

By the end of the Obama administration, twenty-four jurisdictions were compliant.² Note that this article avoids the term fully compliant, since there is some debate among REAL ID experts on whether it is possible to speak of full compliance of individual states when all states are not yet sharing driver’s license information in an interstate network. According to DHS, approximately 90 percent of all U.S. drivers at the time (fall 2016) held licenses from jurisdictions that met the Act’s standards or that have received extensions. Most likely, that figure was about 86 percent, since, given my calculations based on the Federal Highway Administration data, the eight noncompliant jurisdictions at the time accounted for about 14 percent of licensed drivers (29.7 million out of 214 million) (Krajewska 2017, 180–81).

A crucial announcement made one year before the end of the Obama administration played an important role in accelerating progress. In January 2016, DHS Secretary Jeh Johnson (who became DHS Secretary in December 2013) announced the schedule for the final phase of implementation of the REAL ID Act. Effective from January 22, 2018, passengers with a driver’s license or ID card issued by a state that is still not compliant with the REAL ID Act (unless that state has been granted an extension to comply with the Act) would need to show to Transportation Security Authority (TSA) an alternative form of acceptable identification for domestic air travel (DHS 2016a). Most importantly, starting October 1, 2020, every air traveler will need a REAL ID-compliant license, or another acceptable form of identification, for domestic air travel. Secretary Johnson announced that DHS would conduct outreach to educate the traveling public about the timeline and continue engagements with states to encourage compliance with REAL ID standards. Starting July 15, 2016, TSA, in coordination with airlines and airport stakeholders, started to issue web-based advisories and notifications to the traveling public. Starting December 15, 2016, TSA expanded outreach at its airport checkpoints through signage and handouts.

Both the January 2018 and the October 2020 deadlines provided a much-needed urgency to jurisdictions not yet compliant with REAL ID. By late January 2018 only one jurisdiction (American Samoa) was not compliant with the REAL ID Act and lacked an extension. The territory became subject to enforcement in February 2018, though “to allow for a smooth transition” TSA provided additional assistance to travelers from Samoa in the following months. Then, in October 2018, the governor of the territory signed into law a bill that allowed Samoa to comply with REAL ID (DHS 2018a; Samoa News 2018).

The situation in the spring of 2018 was notable, given that just two years prior—in the spring of 2016—five jurisdictions (Illinois, Minnesota, Missouri, Washington, and American Samoa) were noncompliant and did not have extensions (DHS 2016b). Residents of Minnesota and Washington were in better shape than residents of the other three jurisdictions since these two states at least offer their residents the option to apply for enhanced driver’s licenses (EDLs) and enhanced IDs (DHS 2016b). Such documents require proof of U.S. citizenship, and federal officials can accept them for REAL ID purposes. Only five U.S. states (Michigan, Minnesota, New York, Vermont, and Washington) offer EDLs (created largely to facilitate crossing of the United States–Canada border).

The five noncompliant jurisdictions were in different places when it came to their potential compliance with REAL ID. For instance, in January 2016, it became clear that elected officials in both Minnesota and Missouri were ready to make the changes that the DHS needed. In Minnesota, Governor Mark Dayton (D) made clear that he was ready for the legislature to update the law (Croman 2016). In Missouri, Governor Jay Nixon (D), who signed that state’s 2009 anti-REAL ID law, called for the legislature to change state law “in accordance with the federal regulations” (Graef 2016). In August 2017, Missouri became the last state to commit to REAL ID compliance, after Governor Eric Greitens (R) signed HB 151 into law (Keeping IDentities Safe 2017a).

As for the state of Washington, in late October 2015, DHS denied the state an extension longer than until January 10, 2016. One reason was that Washington did not require proof of legal presence in the United States to issue a driver’s license or an ID card. While over a dozen other states and the District of Columbia also issue driver’s licenses to illegal immigrants,³ their licenses for illegal immigrants are marked as restricted/not intended for identification for federal purposes, but that has not been the case for licenses from Washington State (La Corte 2015; NCSL 2020). New Mexico was in the same category as Washington State, but in 2016 joined the states that clearly differentiated cards issued to illegal immigrants as not intended for identification for federal purposes.⁴ Jurisdictions can be fully compliant with REAL ID and still issue driver’s licenses to illegal immigrants (Maryland is one of such jurisdictions), as long as such licenses are marked as not intended for identification for federal purposes.

In Washington State, Governor Jay Inslee (D), who has held the office since 2013, after several years “floated a middle-path solution,” to use the words of The Seattle Times editorial, to both retain licenses for illegal immigrants and comply with REAL ID, by using a two-tiered licensing system (Seattle Times 2015). Since July 2018, the state’s standard licenses—which are not in line with the federal requirements—are marked “FEDERAL LIMITS APPLY” to indicate they are not REAL ID-compliant and thus not acceptable for certain purposes by federal authorities. Washington State residents can therefore get either REAL ID-compliant Enhanced Driver’s Licenses (only available to U.S. citizens) or standard licenses that are not compliant (La Corte 2017; Washington State Department of Licensing n.d.).

During the first several years of the Trump administration, additional steps were taken toward implementation. At the start of the Trump administration in 2017, twenty-four jurisdictions were compliant, twenty-two had received extensions, two jurisdictions were under review, and eight were noncompliant. However, Homeland Security Secretary John Kelly made clear throughout the spring of 2017 that he was committed to enforcement of the REAL ID rules and the January 2018 deadline set by Secretary Johnson, and DHS officials continued to make clear that the October 2020 deadline is real. In 2017, 2018, and 2019, legislative and gubernatorial actions moved additional jurisdictions toward REAL ID Act compliance, including in Washington State and Oklahoma, as well as Pennsylvania, which, after many years of prohibiting compliance, allowed compliance in May 2017 and began issuing REAL ID-compliant licenses in March 2019 (Keeping IDentities Safe 2017b; PennDOT n.d.).

By November 2019, only five jurisdictions—New Jersey, Oklahoma, Oregon, American Samoa, and Northern Mariana Islands—had extensions or were under review, but all were set to start issuing compliant licenses by the summer of 2020. New Jersey started issuing REAL ID-compliant driver’s licenses on a limited basis in September 2019 (Lazo 2019). Oklahoma plans to issue them from select metro locations in April 2020 and statewide by August 2020 (Schlotthauer 2019). Oregon will start issuing them in July 2020 (Oregon Driver & Motor Vehicle Services n.d.).

Reasons for REAL ID Continued Implementation Despite Obstacles

While it is too early to declare the program’s implementation a success, it is nevertheless possible at this point to examine the reasons for the program’s continued implementation despite obstacles. The explanation lies partially in the outreach effort of an office inside the DHS. Faced with state governors and legislatures often critical of REAL ID, the REAL ID Program Office focused on establishing and maintaining a strong working relationship directly with the leaders of DMVs in all U.S. states and territories and with AAMVA.

The progress of REAL ID implementation is partially due to the work of a small REAL ID Program Office at the DHS. That office, with no more than five employees at any one time, is currently located in the Office of Policy Implementation and Integration. Darrell Williams was the first person to head the REAL ID Program Office, from its establishment in 2006 to 2011. Ted Sobel headed the office since 2012. Steve Yonkers became the Director of Identity and Credentialing, including the REAL ID program. In the meantime, the office was renamed the Office of State-Issued ID Support (OSIIS). Despite these name changes at various points in time, this article will refer to this entity simply as “the office,” “the REAL ID Office,” or “OSIIS.” As one interviewee explained, the Public Affairs Office at the DHS “insisted on changing the name to the Office of State-Issued ID Support. This was the one thing they insisted on. It speaks volume to what they wanted to get away from. They really wanted to move from [the perception of] national [identification documents] to state-issued [identification documents].” The office has carried on its work, despite numerous obstacles it faced, both internally (within DHS) and externally (the already-mentioned opposition to REAL ID).

Internally, the office received varying levels of support from DHS. Interviewees mentioned very good support from Secretary Michael Chertoff (in office until January 2009), but hardly any support from Secretary Janet Napolitano (January 2009–September 2013), who was openly critical of the REAL ID Act. Although there is little publicly available information on the REAL ID stance of the next Secretary of Homeland Security, Jeh Johnson (December 2013–January 2017), many more states became compliant with REAL ID by the end of his tenure. John Kelly’s short tenure as the DHS Secretary (January–July 2017) saw significant commitment to REAL ID. In June 2017, Secretary Kelly testified before the House Homeland Security and Governmental Affairs Committee. He said that most states and territories have taken REAL ID seriously, but “some in elected or appointed state and federal positions have chosen to drag their feet or even ignore this federal law. I will not. REAL ID will make America safer. It already has. REAL ID will soon be enforced at our airports, land ports of entry, and all federal facilities” (DHS 2017). Secretary Kirstjen Nielsen (December 2017–April 2019) was also supportive of the law. For instance, in January 2018 she met Governor Dayton to discuss Minnesota’s progress toward federal REAL ID compliance (Minnesota Department of Public Safety 2018). DHS says extensions are granted at the discretion of Secretary Nielsen, “who is committed to enforcing the REAL ID law and regulation according to the planned enforcement schedule” (DHS 2018d).

While Secretaries Chertoff, Johnson, Kelly, and Nielsen all showed support for REAL ID, Secretary Napolitano seemed to show the opposite. When Napolitano began to head DHS in January 2009, uncertainty about the future of the REAL ID Act was pronounced, not least because she opposed the Act as governor of Arizona, when she called REAL ID “feel-good” legislation not worth the cost, and in 2008 signed a state law opting out of it (Hsu 2009). In March 2009, as the DHS Secretary, she announced that her office was working with the NGA to propose revisions to the law, and in April, she talked about replacing REAL ID with something that “accomplishes some of the same goals” (CNN 2009). “Napolitano made a repeal of REAL ID a priority,” one interviewee said. “She talked about it publicly at least fifteen times. That’s pretty bad.” The same interviewee pointed out that “the mixed messaging” from the Secretary on the one hand, and from the REAL ID Office on the other hand, “was very difficult to deal with.”

The difference in leadership on REAL ID between Secretary Napolitano and other DHS Secretaries was evident in various ways. An interviewed senior DHS official stated that Secretary Chertoff was directly involved with REAL ID, while Secretary Napolitano was not. The interviewee said that Darrell Williams very regularly briefed Secretary Chertoff on REAL ID, approximately once every month between December 2006 and January 2009. In contrast, Secretary Napolitano attended briefings with him just twice between January 2009 and April 2011. As a senior official noted, “The emphasis flows down from the secretary. If the interest is not exerted at the top level, it will not flow down.” Another interviewee put it this way: “The problem came when Secretary Napolitano came over. She made [multiple] comments opposing REAL ID as Secretary of Homeland Security. Her mike is a lot bigger than that of a REAL ID Office of five guys. So many states made the strategic decision to not comply with REAL ID (…). [Health and Human Services Secretary Kathleen] Sebelius made a push for Obamacare, but Napolitano went on a warpath on REAL ID. Unusual.”

Lacking an ally in DHS leadership during this time, the REAL ID Office had to find ways to advance the program’s implementation. Since REAL ID proved unpopular with many governors and state legislators, members of the office realized they had to connect with officials who would, first, understand the importance of identification document security and, second, be the ones directly in charge of implementing REAL ID. Leaders of state DMVs fit both requirements. However, as one interviewee explained, “the relationship between DHS (run by lawyers and speaking legalese) and DMVs was terrible.” The office leadership had to develop much better relationships with DMVs in all fifty-six jurisdictions covered by REAL ID.

Since it was DMVs across the country that dealt with the issuance of driver’s licenses every day, their officials were the ones with significant expertise on what worked. The REAL ID Office decided to proactively reach out to DMVs, asking them for their expertise and embracing it. “DMVs became unpaid technical advisors” to the REAL ID Office, according to one interviewee. Moreover, the office “did not want to write an implementation policy that did not make sense to a clerk who had to implement it.” DMVs cared about the process, because “whatever a DMV implemented would affect interaction between their DMV person and the individuals who would walk through their door every day.”

One interviewee clearly differentiated between the policy level and the operational level of REAL ID implementation. The policy level included the Secretary of Homeland Security and the governors, whereas the operational level included DMV chiefs. The operational level became the focus of the efforts of the REAL ID Office to ensure the security of driver’s licenses and keep the program moving forward. “Most of the work was done at the operational level,” an interviewee recounted. “If you listened to the governors’ offices and the senators you [would] get a completely different view than if you went down to the working level at the DMV and the DMV chief and saw what they were really doing inside their operations, you would get a completely different picture.” Most importantly, the interviewee added: “Even when the governors were against REAL ID, at the DMV level they were still very helpful. I don’t know of any state where at the DMV level they were not helpful.”

Not all states were equally committed to boosting security of driver’s licenses. As another interviewee noted: “You have some aggressive states that are security-minded: Indiana, Florida, (…) Alabama. And you have states that are very lackadaisical about this. And you have some states in between.” The interviewee focused especially on states like New Mexico, which since 2003 has been issuing driver’s licenses without requiring proof of lawful status, but modified the practice in 2016, and Washington State, which maintains the practice (and was the first state in the country to enact legislation allowing for this, back in 1993):

States that have very permissive practices, like New Mexico, are rife with fraud. They really are not doing very much to limit fraud in their state. (…) If everyone around you is upgrading the security of their driver’s licenses and you are not, then you’re going to attract a criminal element to your state; you almost become a magnet. We’ve seen that in New Mexico and in Washington State.

Nevertheless, it is telling that despite what was happening at the higher level, DMV chiefs were largely cooperative with the REAL ID Office. One interviewee said that although some governors prohibited their states from becoming compliant with REAL ID, those states still implemented perhaps 95 percent of the Act’s requirements. State DMVs would use the language of being “consistent” with the Act’s requirements, rather than “compliant,” thereby avoiding embarrassing their governors, while at the same time making the licenses more secure.

Still, both the DMV chiefs and the federal REAL ID Office had to be careful, not least because some governors not only barred state participation in the program, but also directed their Departments of Justice and DMVs to report to the governor any attempts by DHS to secure REAL ID implementation. Some DMVs were quite specific about how much they wanted to share with their governor’s office, as one interviewee explained. State DMV chiefs wanted to make driver’s licenses more secure, just like the federal REAL ID Office did, but they did not want to embarrass their governors, if those governors were publicly opposed to the program. When governors knew only some of what was happening at the operational level, they could still “say whatever they wanted to say [about their opposition to REAL ID], and we could [still make driver’s licenses more secure].”

Dealing with this situation was made easier because state DMV officials viewed taking steps to boost security of driver’s licenses as consistent not only with national security interests but also in their own interest. All interviewees agreed that knowing who they issue the documents to is a very important factor for DMVs. “If I am issuing an identification document, I want to know who I am issuing it to,” one expert said. However, interviewees were divided on what primarily drives DMV leadership. Some said it is security, while others insisted that it is customer service. One interviewee said: “Many DMVs are concerned with customer service and not as much with security. (…) Some DMVs think of themselves just as customer service.” The interviewee added: “DMVs have limited resources. They are really revenue generators for the state not necessarily for their own agencies. (…) DMVs have to compete for funding; they don’t want political attention; they want short lines so that people don’t complain; therein lies the challenge.”

Having said that, we cannot ignore the concern of DMVs with driver’s license security and their view that implementing REAL ID was in their own interest. One interviewee who worked at the REAL ID Office explained:

DMVs were willing to work with the office because they knew this was important. DMVs wanted to help us get this right. For them, it became self-serving at the operational level. (…) [Many] of those individuals at the operational level understood what they needed, knew what they needed, and for them, in many cases, the issue became funding. If we could find the funding for them, or at least help them work out some funding issues, they were, in many cases, going to do the right thing since they were more concerned with security than we were, because it was their cards or their process. (…) Once we developed [relationships with the DMVs] that made it even easier, because it was helping them get something that they really needed and wanted.

Another interviewee argued: “The reason [the states and DMVs] are complying [with REAL ID] is not because it is federal law, it’s because they found it’s really good for them. They’ve gotten rid of a lot of fraud.” Yet another interviewee explained:

DMV administrators don’t really like a lot of fraud. It’s a very bad thing when you find out that somebody came in to your DMV and basically lied to you, penetrated the process, and then used that driver’s license in a commission of a crime. (…) REAL ID [is about] security. It’s security of the driver’s license that can be used in the commission of other crimes.

The same interviewee reiterated that Congressman Sensenbrenner’s idea behind REAL ID was to make it more difficult for terrorists to carry out crimes. The interviewee said, “that point was somewhat lost” in all the opposition to REAL ID. The security of driver’s licenses was viewed as important not only because of terrorism, but also because of various criminal activities. The above interviewee said: “One of the challenges we see is communicating that people don’t fraudulently obtain driver’s licenses for fun. They are using the commission in a multitude of crimes. Terrorism is just one. We see it in mortgage fraud, identity theft, purchasing firearms. Very wide-ranging catalogue.”

Among those officials committed to the importance of document security, most embrace the REAL ID Act, but some believe that this is something that the states should have done on their own. One interviewee quoted a congressional staffer who made it clear that the fact that we would need the REAL ID Act is “ridiculous,” and the federal government should not have to pay for this. On this view, the states should have been keeping up with security on their own and updating their credentials regularly.

As one official said, DMVs have long been aware of the need to keep up with security. “Long before DHS came along, DMVs knew they had problems with regard to their identification documents. They knew that in the 1990s. [In the 1990s], the problem was maybe not immigration, but a number of bad guys and kids producing fake IDs. What [the DMVs] didn’t [have] was something to galvanize them. And they didn’t have any money to do something about that. DHS became that force to galvanize.” Having the REAL ID compliance deadlines helped them. It became a “hammer to make them do it.”

Interviewees praised both Darrell Williams and Ted Sobel as heads of the REAL ID Office. One interviewee said: “DHS did a lot of good outreach. They visited every AAMVA conference. Darrell Williams, who was running the office, was going to as many meetings of AAMVA administrators as humanly possible.” Another praised the “great leadership” of Ted Sobel. That interviewee said: “There are some very legitimate issues that states are having [with implementation], and he is working very hard with the states on that.” As David Heyman, the then DHS Assistant Secretary for Policy, noted in written testimony in 2012:

DHS’s subject matter experts have worked with the states and territories continually since 2007. Through its participation in meetings with the states, territories, partnering federal organizations, and stakeholders as well as attendance at a wide range of conferences, [OSIIS] visited 44 of 56 [jurisdictions] covered by the REAL ID Act, including four of the five US territories. (…) DHS has worked with [AAMVA] to coordinate implementation of the standards of the REAL ID regulation. (…) Since 2007, OSIIS has also participated in at least 40 meetings with AAMVA and member states regarding all aspects of the REAL ID program. [The office] provides regular briefings at the semiannual AAMVA Board of Directors Meetings and regional meetings, [and] communicates regularly with the Coalition for a Secure Driver’s License. (DHS 2012)

Cooperation with AAMVA proved key for the REAL ID Office. AAMVA is a trade association made up of DMV chiefs and is very much a support organization for them. As one senior DHS official explained, “[the REAL ID Office] realized they needed an advocate at DMVs. That’s when AAMVA came in. (…) Working with AAMVA improved the relationship [with the DMVs] significantly.”

Although in 2006 AAMVA called for a delay in putting the REAL ID Act into effect due to practical concerns, subsequently AAMVA became one of the biggest supporters of the law. The organization also “really helped with how to write something that is implementable at the DMV level.” In fact, AAMVA became a true ally of the REAL ID Office. As a senior DHS official explained, “without AAMVA support, REAL ID wouldn’t have gone any place.” The official, who knew the work of the REAL ID Program Office well, emphasized that the office worked very closely with AAMVA and the individual DMVs. “We built a really close relationship [with them]. We would have a working group with DMVs and AAMVA. They helped out with card standards, the security features, any changes to the regulations, [and] implementation.” The official added, “AAMVA became an advocate of the [REAL ID Program] Office for DMVs. [AAMVA] became more of an advocate for the office than DHS was.”

In addition to the reasons listed above, another reason for the REAL ID program’s continued implementation despite obstacles was that state DMV officials realized that in many cases they did not have to change a great deal to meet many of the REAL ID standards and that the required changes were not as costly as they believed. For example, the final DHS regulations require that all REAL ID-compliant documents use compatible machine-readable technology. The barcode needs to include the cardholder’s full legal name, date of birth, gender, and address, among others. However, when DHS issued the regulations in 2008, forty-five states and the District of Columbia were already utilizing barcodes that complied with the standard. Only several jurisdictions had to alter the type of information and method in which said information was stored to comply with the regulations (Tatelman 2008, 24).

It was also helpful that DHS set partial goals for jurisdictions. Rather than insist that states and territories meet all thirty-nine REAL ID standards at once, DHS would acknowledge partial progress. DHS also created a subset of the main list of standards. That subset contained eighteen most important benchmarks that were primarily concerned with security. As mentioned above, if states could meet eighteen of those standards, DHS deemed them “materially compliant.” One interviewee noted “DHS got creative” when in January 2008 it came up with the material compliance benchmarks in the Final Rule. “The idea was for states to be able to show progress,” and show progress they did. Many jurisdictions started by becoming materially compliant, and subsequently worked their way up to what DHS deems as compliance.

Conclusion

A decade ago, some observers doubted the REAL ID Act will survive. Some uncertainty remains; but the situation in 2020 is dramatically different from that envisioned by earlier analyses. All states have made significant progress implementing REAL ID. By November 2019, only five jurisdictions had extensions or were under review. Only two of those states, Oregon and Oklahoma, will not be ready to issue REAL ID-compliant licenses until mid-2020. Most important, no jurisdiction is noncompliant. Even states that have been granted extensions have made significant progress toward more secure driver’s licenses. At the end of January 2020, DHS reported that the states have collectively issued more than 95 million REAL ID-compliant driver’s licenses and ID cards (34 percent) out of 276 million total cards (DHS 2020).

As this article is going to press in the spring of 2020, it is worth highlighting one development that will extend the time frame of REAL ID implementation by an additional year: the national crisis caused by a rapidly spreading novel coronavirus. On March 16, 2020, three chairmen of relevant committees and subcommittees in the U.S. House of Representatives wrote to DHS asking for REAL ID implementation to be delayed, citing the rapid spread of the coronavirus. With states across the country closing their DMV offices, the NGA also asked DHS to delay the October 1, 2020 deadline by at least one year. On March 23, 2020, President Trump announced he would be delaying the deadline. Several days later, as Congress moved to enact a relief package that included a provision requiring DHS to push back the deadline by at least one year, Acting DHS Secretary Chad Wolf followed up on the president’s announcement by setting a new deadline of October 1, 2021 (Dinan 2020).

While it is too early to declare the program’s implementation a success, it is important to understand the reasons for the program’s continued implementation despite obstacles. As this article shows, the explanation lies partially in the outreach effort of a small office inside the DHS. Faced with state governors and legislatures that were often critical of REAL ID, the REAL ID Program Office focused on establishing and maintaining a strong working relationship directly with the leaders of DMVs in all U.S. states and territories.

When the REAL ID Office lacked an ally in the DHS during Secretary Napolitano’s tenure, leaders in the office had to find ways to advance the program’s implementation. Developing a strong working relationship directly with DMV chiefs proved key. It turns out that despite the opposition to REAL ID from many state governors and legislatures, DMV chiefs were largely cooperative with the REAL ID Office. DMV chiefs wanted to make driver’s licenses more secure, just like the REAL ID Office did, but they did not want to embarrass their governors, if those governors were publicly opposed to the program. Therefore, they were often careful in how much they would share about their operations with their governors. At the same time, many DMV chiefs were committed to making progress on REAL ID implementation because they viewed driver’s license security as not only in the national security interest but also in their own interest, since it helps DMVs reduce fraud. DMVs knew they had problems with their identification documents already in the 1990s, but the dangers became clearer in the aftermath of 9/11, and REAL ID proved a much-needed motivator to lead DMVs to address that problem.

Developing a strong working relationship with AAMVA also proved key for the REAL ID Office. According to one interviewee, AAMVA became more of an advocate for the REAL ID Office than DHS was. Strong leadership in the REAL ID Office proved invaluable in developing and maintaining a strong working relationship with the leaders of DMVs and with AAMVA.

Another reason for the REAL ID program’s continued implementation in the face of obstacles was that DMVs realized that meeting the federal standards would not require dramatic changes or cost as much as initially estimated. It was also helpful that DHS set partial goals for jurisdictions, by creating a “materially compliant” checklist that enabled jurisdictions to implement the most important standards first and show progress. Many jurisdictions started by becoming materially compliant, and subsequently worked their way up to what DHS deems as compliance.

The story of REAL ID implementation despite obstacles has lessons that go beyond this particular policy area. The survival of REAL ID shows that actors at the federal and state levels can overcome the challenges of implementing federal–state policy. While states usually dislike a top-down approach to policy implementation, states are not unitary actors, and the REAL ID case shows that federal officials can work with some state officials (in this case DMV chiefs and personnel) without, on the whole, alienating other state officials (such as governors and state legislatures). This is a textbook example of bureaucratic entrepreneurialism. As this case demonstrates, negotiations carried out at a senior bureaucratic level can produce policy implementation that might otherwise have been stymied by political forces or organizational impediments, knowing this can be useful in examining other federal–state policies and federal–state relations in general.

This analysis of REAL ID Act implementation in the face of significant obstacles has broader implications for our understanding of federal–state interactions and negotiations in a polarized era. One lesson to emerge from this study is that overcoming state–federal conflict in policy implementation is possible when administrative officials at the state and federal level are key actors and can collaborate and perceive common interests. Scholars have reached similar conclusions when studying other federal policies. For instance, some recent studies on ACA implementation have emphasized that state insurance commissioners were particularly pragmatic actors and played a key role in smoothing state implementation of some aspects of the ACA, such as insurance exchanges, even when elected state officials engaged in strong opposition to the ACA (Haeder and Weimer 2013). This analysis of the REAL ID Act provides confirmation of the importance of direct interaction between federal and state administrative officials.

Scholars of homeland security, like Cali M. Ellis and Michael C. McDaniel, have rightly argued that despite the importance of coordination, DHS has been taking a hierarchical approach to their state and local partners which alienates them (Ellis and McDaniel 2013, 213). Scholars of federalism, like Donald Kettl, have argued that homeland security, like perhaps no other issue in U.S. history, has “sharply raised a question about the role and structure of federalism” (Kettl 2003, 271).

Writing in 2006, Kettl observed that DHS would improve if the department would “work from the top down so that the system works from the bottom up. Most of DHS’s efforts have been focused in corralling its vast federal empire. Coordination with state and local governments has largely been an afterthought” (Kettl 2006, 283, emphasis in original). Over a decade later, the REAL ID case shows that individual offices within the DHS can look at working with other levels of government as more than an afterthought. REAL ID thus underscores the importance of intergovernmental partnerships in U.S. homeland security policy.

I would like to thank Publius editor, John Dinan, for his thoughtful reading of this article. His helpful comments and suggestions were invaluable in making the article better.

Footnotes

1

This article will interchangeably refer to all of those as “states,” “states and territories,” or “jurisdictions.”

2

This is data from November 1, 2016, rather than the actual end of the Obama administration in January 2017, but there were no significant changes during that time.

3

For an explanation why I use the term “illegal immigrants” rather than “undocumented immigrants” in my research, see the section on terminology in my book Documenting Americans (Krajewska 2017, 8).

4

Since 2003, New Mexico has been issuing driver’s licenses without requiring proof of lawful status, a key component of the REAL ID standards. In February 2016, the New Mexico legislature passed a law bringing regular NM driver’s licenses into compliance with REAL ID, while at the same time allowing illegal immigrants—and any citizens who want them—to obtain “driving authorization cards.” Consistent with the REAL ID requirements, New Mexico driving authorization cards will have a different appearance than a standard REAL ID license and state on the face of the card, “not for official purposes.” Governor Susana Martinez signed the legislation into law in March 2016 (Keeping IDentities Safe 2016).