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By
Joan
Friedland
Immigration Policy Director
This past December, shortly before the close
of the 109th Congress, Senators Daniel K. Akaka (D-HI) and John Sununu
(R-NH) introduced the Identification Security Enhancement Act of 2006
(S 4117), which among other things would repeal the driver’s license
provisions (title II) of the REAL ID Act of 2005.
The REAL ID Act was passed in May 2005 as
part of “must pass” supplemental funding for the Iraq war (Public Law
109-13). It prevents the federal government from accepting state-issued
driver’s licenses or ID cards as identification unless they meet the
act’s strict and complex requirements by May 2008. Under these
requirements, applicants for driver’s licenses must present extensive
documentary proof of their identity, citizenship or lawful immigration
status, and residence; and the documents they present must then be
verified as being authentic. (For more details about REAL ID’s
extensive requirements, see NILC’s June 2005 issue brief, “Questions &
Answers about Driver’s Licenses Now That the REAL ID Act Has Become Law.”)
Since its passage, the REAL ID Act has been widely criticized for how
much it will cost to implement — estimated, in
a report issued by the National Governors Association, the National
Conference of State Legislatures, and the American Association of Motor
Vehicle Administrators, at $11 billion — and its detrimental effects on
the civil and privacy rights of U.S. citizens and noncitizen residents
alike.
The Akaka-Sununu bill, which was introduced
on Dec. 8, 2006, mirrors provisions of the Intelligence Reform and
Terrorism Prevention Act of 2004 (S 2845), passed in Dec. 2004 and
repealed five months later by the REAL ID Act. Like the Intelligence
Reform Act, the Akaka-Sununu bill would not impose driver’s license
standards on the states. Instead, it would require the U.S. Dept. of
Transportation, in consultation with the U.S. Dept. of Homeland Security
(DHS) and through a negotiated rulemaking process, to set standards for
acceptance of identity documents, verifiability of documents, fraud
prevention, and security features for actual license cards.
The negotiated rulemaking process
established by the Intelligence Reform Act was well under way when REAL
ID was passed. Representatives from state government organizations,
motor vehicle associations, civil rights, and immigration groups were
participants. REAL ID’s enactment put an abrupt halt to their work.
The negotiated rulemaking process required
by the Akaka-Sununu bill and the Intelligence Reform Act would allow
states much greater flexibility in issuing licenses than would be
permitted by REAL ID. Significantly, the Akaka-Sununu bill and the
Intelligence Reform Act explicitly provide that states could continue to
decide who could be eligible for driver’s licenses. Under this
provision, a state that granted driver’s licenses regardless of
immigration status could continue to do so, although there was concern during the previous negotiated rulemaking that the list of
acceptable documents could impose a de facto requirement that in order
to be eligible for a license noncitizens must have lawful immigration
status. The Akaka-Sununu bill also has important new provisions
mandating that the agreed-upon standards protect the civil and privacy
rights of drivers, including ensuring their due process rights to
challenge government database errors that result in their being denied a
license.
Since the 109th session of Congress has now
ended, the bill will have to be reintroduced in the 110th session, which
began in January. Whether it will be reintroduced and how vigorously
its sponsors will pursue it is not clear. Akaka explained in his Dec. 8
floor statement that he will wait until DHS issues its proposed REAL
ID–implementing regulations before pursuing any action on the bill.
These regulations have not yet been made
public. There are unconfirmed reports that DHS has sent draft
regulations to the Office of Management and Budget (OMB) for review. If
that is the case, OMB has 90 days to review the regulations, which then
could be offered for public comment. We will continue to provide
information on the regulations as we receive it.
For more information, contact
the author in NILC’s Washington, DC,
office (202.216.0261).
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