What’s the real story about the REAL-ID Act and air travel?

BY EDWARD HASBROUCK

Travelers are understandably confused by recent news about the REAL ID Act and new ID requirements for passengers on domestic flights within the U.S.

Accurate public understanding of what’s going on is not helped by the fact that the U.S. Department of Homeland Security, in official statements by its highest officials, on its official website have been telling out-and-out lies about what the law does and doesn’t require.

Many well-meaning and reputable but overly trusting journalists have allowed themselves to be used as conveyor belts for this DHS propaganda. The result has been a flood of authoritative-seeming news reports, many of them flatly wrong.

The essential facts are as follows:

In order to try to intimidate state governments into allowing their state driver licenses and ID databases to be integrated into a distributed national ID database (the REAL ID Act is about the database, not the ID cards), the DHS is threatening states. DHS intimates that at some future date set at the discretion of the DHS (not earlier than 2018, but that date has already been postponed by a decade since I first wrote about it, and could be postponed again) the TSA and its minions will start preventing people from flying if they show up at airports with ID from states that the DHS, in its discretion, deems insufficiently “compliant” with the federal REAL ID Act.

The DHS and the TSA have no legal authority to carry out this threat. The right to travel by air is guaranteed by explicit Federal law (“the public right of freedom of transit through the navigable airspace”, 49 US Code § 40101), by the Bill of Rights (“the right of the people… peaceably to assemble”, U.S. Constitution, Amendment 1), and by an international human rights treaty to which the USA is a party (“Everyone lawfully within the territory of a State [i.a. a country that is a party to the ICCPR] shall, within that territory, have the right to liberty of movement”, ICCPR, Article 12, Paragraph 3).

The TSA itself has said repeatedly, under oath, in court, that no law or regulation requires anyone to show any ID to fly within the USA. People fly without ID every day, and the TSA has procedures for that, as I’ve heard TSA witnesses testify and TSA lawyers argue in court, and as TSA responses to my FOIA requests have confirmed. So far as I have been able to determine — and I’ve looked hard — no court has ever reviewed, much less upheld, any ID requirement for domestic flights within the U.S.

If Congress doesn’t repeal the REAL-ID Act (bills to repeal the REAL ID Act are being introduced in both houses of Congress), the DHS threats to harass, delay or prevent people without ID it deems “acceptable” from flying,  are certain to be challenged in court, and likely to be overturned as unconstitutional.

Here are more details in a series of articles posted in the last two weeks in the REAL-ID category on the Identity Project blog at PapersPlease.org:

If you have 15 minutes and would rather watch video or listen to audio than read, there’s an overview of the REAL-ID Act in this presentation delivered last spring at the Cato Institute, a think tank in Washington, DC. And I explain the current situation in this interview yesterday with Texas Public Radio.

Right now, U.S. domestic travelers don’t need to do anything about their ID cards. However, they do need to tell Congress to repeal the REAL ID Act, and ask state officials to prepare to defend your rights and those of other residents of your state if the DHS and/or TSA try to interfere with American’s right to travel.

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