Btw, thanks for posting. I posted this 2 days ago and my thread was pulled.
Controversy and opposition
The Real ID Act has faced criticism from across the political spectrum and remains the subject of several ongoing controversies. Opponents of the Real ID Act include libertarian groups, like the Cato Institute,[66] immigrant advocacy groups, human and civil rights organizations like the ACLU, Christian advocacy groups such as the American Center for Law and Justice (ACLJ),[67] privacy advocacy groups like the 511 campaign, state-level opposition groups such as from North Carolina[68] and Florida,[69] government accountability groups, labor groups like AFL-CIO, People for the American Way, consumer and patient protection groups, some gun rights groups, many state lawmakers, state legislatures, and governors, and The Constitution Party among others.[70][71] Real ID is opposed by such groups as Gun Owners of America, by the editorial page of the Wall Street Journal, and Obama administration. Along with the Bush administration, the Real ID Act is strongly supported by the conservative Heritage Foundation and by many anti-illegal immigration advocates.[70] Founded by evangelical Christian Pat Robertson, the American Center for Law and Justice (ACLJ) participated in a joint press conference with the ACLU in 2008, highlighting the broad diversity of the coalition opposing Title II of the REAL ID Act.[72] The REAL ID Act causes concerns for transgender people, as well.[73] The National Coalition Against Domestic Violence has also voiced concern about REAL ID.[74]
Several legal challenges to REAL ID are underway by individuals in state courts, including Adrian Wyllie in Florida[75] and Kaye Beach in Oklahoma.[76]
Among the 2008 presidential candidates, according to a February 2008 CNet report at news.com, John McCain strongly supported the Real ID Act, Barack Obama and Ron Paul flatly opposed it, while Hillary Clinton called for the law to be reviewed.[77] In a September 2007 interview Mike Huckabee expressed opposition to the Real ID Act, calling the Real ID Act “a huge mistake”.[78]
Congressional passage procedure controversy
The original Real ID Act, H. R. 418, was approved by the House on February 10, 2005, by a vote of 261–161. At the insistence of the Real ID Act sponsor and then House Judiciary Committee Chair F. James Sensenbrenner (Republican, Wisconsin), the Real ID Act was subsequently attached by the House Republican leadership as a rider to H.R. 1268, a bill dealing with emergency appropriations for the Iraq War and with the Tsunami relief funding. H.R. 1268 was widely regarded as a “must-pass” legislation. The original version of H.R. 1268 was passed by the Senate on April 21, 2005, and did not include the Real ID Act. However, the Real ID Act was inserted in the conference report on H.R. 1268 that was then passed by the House on May 5, 2005, by a 368–58 vote and was unanimously passed by the Senate on May 10, 2005.[79] The Senate never discussed or voted on the Real ID Act specifically and no Senate committee hearings were conducted on the Real ID Act prior to its passage.[80] Critics charged that this procedure was undemocratic and that the bill’s proponents avoided a substantive debate on a far-reaching piece of legislation by attaching it to a “must-pass” bill.[80][81][82][83]
A May 3, 2005 statement by the American Immigration Lawyers Association said: “Because Congress held no hearings or meaningful debate on the legislation and amended it to a must-pass spending bill, the REAL ID Act did not receive the scrutiny necessary for most measures, and most certainly not the level required for a measure of this importance and impact. Consistent with the lack of debate and discussion, conference negotiations also were held behind closed doors, with Democrats prevented from participating.”[84]
National ID card controversy
For more detailed arguments for and against identity cards, see Identity document.
There is disagreement about whether the Real ID Act institutes a “national identification card” system.[85] The new law only sets forth national standards, but leaves the issuance of cards and the maintenance of databases in state hands; therefore, the Department of Homeland Security claims it is not a “national ID” system.[86] Web sites such as no2realid.org, unrealid.com, and realnightmare.org argue that this is a trivial distinction, and that the new cards are in fact national ID cards, thanks to the uniform national standards created by the AAMVA and (especially) the linked databases, and by the fact that such identification is mandatory if people wish to travel out of the United States.
Many advocacy groups and individual opponents of the Real ID Act believe that having a Real ID-compliant license may become a requirement for various basic tasks. Thus a January 2008 statement by ACLU of Maryland says: “The law places no limits on potential required uses for Real IDs. In time, Real IDs could be required to vote, collect a Social Security check, access Medicaid, open a bank account, go to an Orioles game, or buy a gun. The private sector could begin mandating a Real ID to perform countless commercial and financial activities, such as renting a DVD or buying car insurance. Real ID cards would become a necessity, making them de facto national IDs”. However, in order to perform many of those tasks, government-issued identification is already required (e.g., two forms of ID – usually a driver’s license, passport, or Social Security card – are required by the Patriot Act in order to open a bank account).[87]
Constitutionality
Some critics claim that the Real ID Act violates the Tenth Amendment to the United States Constitution as a federal legislation in an area that, under the terms of the Tenth Amendment, is the province of the states. Thus, Anthony Romero, the executive director of ACLU, stated: “Real ID is an unfunded mandate that violates the Constitution’s 10th Amendment on state powers, destroys states’ dual sovereignty and consolidates every American’s private information, leaving all of us far more vulnerable to identity thieves”.[88]
Former Republican U.S. Representative Bob Barr wrote in a February 2008 article: “A person not possessing a Real ID Act-compliant identification card could not enter any federal building, or an office of his or her congressman or senator or the U.S. Capitol. This effectively denies that person their fundamental rights to assembly and to petition the government as guaranteed in the First Amendment”.[89]
The DHS final rule regarding implementation of the Real ID Act discusses a number of constitutional concerns raised by the commenters on the proposed version of this rule.[15] The DHS rule explicitly rejects the assertion that the implementation of the Real ID Act will lead to violations of the citizens’ individual constitutional rights (page 5284 of the DHS rule in the Federal register). In relation to the Tenth Amendment argument about violation of states’ constitutional rights, the DHS rule acknowledges that that these concerns have been raised by a number of individual commenters and in the comments by some states. The DHS rule does not attempt to rebuff the Tenth Amendment argument directly, but says that the DHS is acting in accordance with the authority granted to it by the Real ID Act and that DHS has been and will be working closely with the states on the implementation of the Real ID Act (pages 5284 and 5317 of the DHS final rule in the Federal Register).
On November 1, 2007, attorneys for Defenders of Wildlife and the Sierra Club filed an amended complaint in U.S. District Court challenging the 2005 REAL ID Act. The amended complaint alleges that this unprecedented authority violates the fundamental separation of powers principles enshrined in the U.S. Constitution. The environmental groups argue that Congress unconstitutionally delegated the power to the Department of Homeland Security (an appointed Executive branch not accountable to the public) to pick and choose which laws will apply to border wall construction. On December 18, 2007, Judge Ellen Segal Huvelle rejected the challenge.[90][91]
On March 17, 2008, attorneys for Defenders of Wildlife and the Sierra Club filed a Petition for a Writ of Certiorari with the U.S. Supreme Court to hear its “constitutional challenge to the Secretary’s decision waiving nineteen federal laws, and all state and local legal requirements related to them, in connection with the construction of a barrier along a portion of the border with Mexico”.[92][93] They question whether the preclusion of judicial review amounts to an unconstitutional delegation of legislative power and whether the “grant of waiver authority violates Article I’s requirement that a duly-enacted law may be repealed only by legislation approved by both Houses of Congress and presented to the President”.[92] On April 17, 2008, numerous amicus briefs “supporting the petition were filed on behalf 14 members of Congress, a diverse coalition of conservation, religious and Native American organizations, and 28 law professors and constitutional scholars”.[94][95][96]
Asylum and deportation controversy
Many immigrant and civil rights advocates feel that the changes related to evidentiary standards and the immigration officers’ discretion in asylum cases, contained in the Real ID Act, would prevent many legitimate asylum seekers from obtaining asylum.[97][98] Thus a 2005 article in LCCR-sponsored Civil Rights Monitor stated, “The bill also contained changes to asylum standards, which according to LCCR, would prevent many legitimate asylum seekers from obtaining safe haven in the United States. These changes gave immigration officials broad discretion to demand certain evidence to support an asylum claim, with little regard to whether the evidence can realistically be obtained; as well as the discretion to deny claims based on such subjective factors as “demeanor”. Critics said the reason for putting such asylum restrictions into what was being sold as an anti terrorism bill was unclear, given that suspected terrorists are already barred from obtaining asylum or any other immigration benefit”.[97]
Similarly, some immigration and human rights advocacy groups maintain that the Real ID Act provides an overly broad definition of “terrorist activity” that will prevent some deserving categories of applicants from gaining asylum or refugee status in the United States.[99] A November 2007 report by Human Rights Watch raises this criticism specifically in relation to former child soldiers who have been forcibly and illegally recruited to participate in an armed group.[100]
Judicial review controversy
A previous version of the Real ID Act (H.R. 418) would have prohibited any judicial review of Homeland Security law waivers for barrier construction. Critics maintained that this would elevate the Secretary of Homeland Security above the law, and this language was changed in the final version (H.R. 1268).
But even the limited restrictions on judicial review remain controversial. Supporters of the Real ID Act see a need to restrain so-called “judicial activism” so needed barriers can be built.[citation needed] Opponents assert that the restrictions on judicial review may exceed the authority Congress has to regulate the courts (as spelled out in Article Three of the United States Constitution), and violate the principle of separation of powers.[citation needed]
Privacy
Many privacy rights advocates charge that by creating a national system electronically storing vast amounts of detailed personal data about individuals, the Real ID Act increases the chance of such data being stolen and thus raises the risk of identity theft.[101][102][103][104] The Bush administration, in the DHS final rule[15] regarding the Real ID Act implementation, counters that the security precautions regarding handling sensitive personal data and hiring DMV workers, that are specified in the Real ID Act and in the DHS final rule, provide sufficient protections against unauthorized use and theft of such personal data (pages 5281–5283 of the DHS final rule in the Federal Register).
Another privacy concern raised by the privacy advocates, such as the Electronic Frontier Foundation, is that the implementation of the Real ID Act will make it substantially easier for the government to track numerous activities of Americans and conduct their surveillance.[105][106]
Supporters of the Real ID Act, such as a conservative think-tank the Heritage Foundation, dismiss this criticism under the grounds that states will be permitted (by law) to share data only when validating someone’s identity.[105]
The Data Privacy and Integrity Advisory Committee, which was established to advise the Department of Homeland Security on privacy-related issues, released a statement regarding the Department of Homeland Security’s proposed rules for the standardization of state driver licenses on May 7, 2007.[107] The committee stated that “Given that these issues have not received adequate consideration, the Committee feels it is important that the following comments do not constitute an endorsement of REAL ID or the regulations as workable or appropriate”, and “The issues pose serious risks to an individual’s privacy and, without amelioration, could undermine the stated goals of the REAL ID Act”.
