With the move in the Senate to revive our moribund national ID law, the REAL ID Act, under the name “PASS ID,” it’s important to look at whether we’re still dealing with a national ID law. My assessment is that we are.
First, PASS ID is modeled directly on REAL ID. The structure and major provisions of the two bills are the same. Just like REAL ID, PASS ID sets national standards for identity cards and drivers’ licenses, withholding federal recognition if they are not met.
There is no precise definition of a national identification card or system, of course, but its elements are relatively easy to identify.
First, it is national. That is, it is intended to be used throughout the country, and to be nationally uniform in its key elements. REAL ID and PASS ID have the exact same purpose - to create a nationally uniform identity system.
Second, its possession or use is either practically or legally required. A card or system that is one of many options for proving identity or other information is not a national ID if people can decline to use it and still easily access goods, services, or infrastructure. But if law or regulation make it very difficult to avoid carrying or using a card, this presses it into the national ID category.
Neither REAL ID nor PASS ID directly mandate carrying a card. Doing so would be too obviously a national ID system, and politically unpalatable. But both seek to take advantage of the state driver licensing system, and they do that for a reason: Carrying a driver’s license is a practical requirement in most parts of the country, where the automobile reigns supreme as the mode of travel.
But maybe states would decline to participate. Nothing in the PASS ID Act directly requires states to implement the system, and they are entirely free to issue non-compliant licenses and ID cards. But this was also true of REAL ID - because of the constitutional rule that the federal government cannot commandeer the organs of state government. (The case is New York v. United States.)
What both REAL ID and PASS ID do is make it difficult for state residents to function without their nationally standardized ID. They both require the nationally standardized ID to enter federal facilities (perhaps fewer of them under PASS ID), to access nuclear power plants, and to board aircraft.
But the PASS ID bill has specific language saying that a person can’t be denied boarding because they don’t have a national ID. Isn’t that an improvement? It sounds like it, but that language simply restates the rules that exist under REAL ID.
The TSA has never been able to deny people boarding because they don’t have an ID. (Many people have traveled without ID to prove the point.)
What the Department of Homeland Security does is make it really inconvenient to travel without showing ID. Not having your national ID can put you into a long secondary-search delay. And a year ago, the Transportation Security Administration created a new rule allowing them to turn travelers away if they “willingly” refuse to show ID and don’t “assist transportation security officers in ascertaining their identity.”
What this means is that people not showing ID have to answer questions about themselves for a TSA background check - a background check that has included political party affiliation. In other words, you either participate in the national ID system run by states, or you participate in the cardless national ID system that the TSA runs. (The TSA was storing information about who traveled without ID until it got caught.)
The rules are no different between REAL ID and the REAL ID revival bill, PASS ID. You don’t have to carry a national ID to get through the airport, but woe to the person who tries to exercise that freedom.
In addition, the plan under PASS ID is for the federal government to pay states a lot more money for implementation. Cost concerns were a real impediment to REAL ID, and the (false) promise of federal funds is designed to draw states into issuing nationally standard IDs for all their residents.
On balance, REAL ID and PASS ID are peas in a pod. They are both aimed at being practically required. The plan under both is for everyone who has a driver’s license to have a nationally standardized, REAL-ID-type license.
The final “element” of a national ID is that it is used for identification. A national ID card or system shows that a physical person identified previously to a government is the one presenting him- or herself on later occasions. (A Social Security Number is a national identifier, but it is not a national identifiction system because there is no biometric tie between the number and a person.)
REAL ID and PASS ID both subject every applicant for a license to “mandatory facial image capture.” They both put a “digital photograph of the person” on the card. They are most definitely about identification.
Are we still talking about a national ID? REAL ID and the REAL ID revival bill, “PASS ID,” are structured the same. They have no differences in terms of their aim - to create a national ID.
It’s certainly unusual that members of the Senate who formerly appeared to oppose a national ID would reverse course. I’ll spend more time on the politics, of course, and delve into many other issues in future posts.