THE HOUSE of Representatives is to vote today on the REAL ID Act of 2005. As championed by Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.), the bill's principal purpose is to establish federal security controls over driver's licenses issued by states, so that federal officials at airports and elsewhere can have confidence that they know whom they're dealing with. While some civil libertarians worry about establishing a national identification system, the basic idea seems reasonable. But the bill has serious problems; unless they are addressed, the act should not become law.
The first major flaw is that the bill does not stop at requiring that licenses have "physical security features," a digital photograph and other basic data to be valid for federal purposes. It also requires that states see proof that the applicant is legally in the United States. This is unjustified. Different states have adopted different approaches to giving licenses to illegal immigrants, and for good reason. The federal government has failed to control the problem of illegal immigration, and that creates problems that have to be managed at the state level: uninsured drivers, for example. Technically, the bill doesn't prevent a state from continuing to issue such licenses for state driving purposes, as long as they can't be used as federal identification. As a practical matter, however, the likely result would be to set a standard that cuts off policy options for managing a problem the federal government has foisted on the states.
The bill would also tighten standards for asylum-seekers. Currently, those seeking haven in this country must prove that they reasonably fear persecution in their home countries based on such factors as ethnicity, politics or religion. The bill would clarify that these factors must be a "central reason" for their likely persecution. The result could be that innocent people get returned to countries that will oppress them.
Finally, the bill contains a bizarre provision that would allow the secretary of homeland security to waive "all laws" that, in his "sole discretion," he "determines necessary to ensure expeditious construction of . . . barriers and roads" used to secure borders. The bill, Mr. Sensenbrenner said in a floor statement yesterday, is needed "to complete gaps in the San Diego border security fence, which is still stymied eight years after congressional authorization"; it appears directed principally at environmental laws. But it goes way beyond whatever waivers may be necessary in that case -- effectively allowing the department to put itself above any law it finds inconvenient in border security construction and explicitly stripping the courts of any review. Congress should not be so contemptuous of the rule of law.