Is the REAL ID Act REALly unconstitutional?

Posted by: McCall Hoerz, Ellyse Holzman, Elizabeth Hunt, Zachary Hubbell, Jesse James, Emily Jeffries, Delaney Krauss

DEPT HOMELANDWill the Supreme Court find the
REAL ID Act unconstitutional if challenged? That Act provides federal standards for state driver’s licenses and other IDs. States  historically have been in charge of issuing and regulating state identification and licenses. However, beginning October 1, 2020, all air travelers must present a REAL ID compliant license or another acceptable form of identification for air travel. Some state legislatures, including Arizona, have chosen not to adopt the REAL ID Act for their state licenses.

Some citizens have criticized the REAL ID Act as unconstitutional. This will probably be litigated because only 25 states and Washington, D.C. are currently in compliance with the Act. In determining the constitutionality of the REAL ID Act, the Court will consider if the REAL ID Act is a valid exercise of Congressional power under the War Power or Commerce Clause Power. However, the act would still be unconstitutional if the Tenth Amendment or Fourteenth Amendment prohibited it, so the Supreme Court will consider those arguments as well.

After evaluation of these issues, we believe the REAL ID Act is probably constitutional.


Can the REAL ID Act be upheld under the War Power?

In response to the terrorist attacks of September 11th, Congress passed the REAL ID Act in 2005. By requiring states to issue driver’s licenses that are more secure, the Department of Homeland Security continues to fight the global war against terrorism.

After the terrorist attacks in 2001, where terrorists hijacked multiple airplanes and flew them into the World Trade Center, the United States launched the War on Terror. Legislative functions during war include minimizing the threat of injury or danger.

By requiring every air traveler to present a REAL ID for domestic travel, the Congress attempted to prevent terrorist attacks by providing uniform IDs. The Supreme Court respects the judgment of Congress when it exercises the War Power. Therefore, the Supreme Court has been reluctant to hold Congressional action under its War Powers unconstitutional.  

The War Power is the broadest power granted to Congress. Article I, Section 8 of the United States Constitution gives Congress power to take necessary actions to provide for war efforts. Congress can use the War Power within the United States before and after war. However, Congress cannot use the War Power to exceed the power granted by the Constitution.

During war, Congress has a wide scope of authority to wage war successfully. In Hirabayashi v. United States, the Supreme Court allowed Congress to pass a curfew as an emergency war measure. The court held that this was constitutional under the War Power. The Court stated that the War Power allows Congress to do anything necessary to wage war successfully. The Court in Hirabayashi said that the government could burden individuals with an inconvenience like a curfew in times of war.

Like in Hirabayshi, the REAL ID Act inconveniences citizens because they will need to get an alternative form of identification in order to enter federal buildings or fly on airplanes. Unlike the law in Hirabayashi, which was passed during the war, the REAL ID Act is being implemented after most involvement of the US in the war is over.

However, the War Power can also continue after war has ended. In Woods v. Cloyd W. Miller Co., the Supreme Court held rent control could be imposed even though the war had ended. The Court held that the War Power could continue after the end of a war to fix a condition caused by the war.

Like in Woods, the need for uniform identification is a concern that resulted from domestic terrorist attacks. This concern is even greater today than it has been in the past. Historically, war has been thought by most Americans to occur in foreign nations. However, with the rise of terrorism, war has become domestic in nature as well. The REAL ID Act serves to protect domestic travel and the heightened security acts to battle evils created by the war.

However, War Power does not grant Congress the ability to pass whatever laws they would like to during times of war. The ability for Congress to pass laws through the War Power cannot block citizen’s constitutional rights. In United States v. Robel, the Supreme Court held that a law that made it illegal for Communists to work at a defense facility was unconstitutional. The Court found that the law violated the First Amendment by restricting freedom of association.

Unlike Robel, where the law exceeded the First Amendment constitutional limitation by overburdening people with restrictions, the REAL ID Act does not exceed constitutional limits. The only obstacle in making drivers licenses REAL ID compliant, if the state chooses not to implement the Act’s security standards, would be an additional cost from paperwork. In this case, it is unlikely the Court will find that the Act impedes the citizen’s right to travel freely when the only requirement is an increased security measure involving easily accessible, improved identification.

While the REAL ID Act burdens citizens and states, that does not necessarily make it unconstitutional. As the broadest power granted to Congress, the War Power allows Congress to burden citizens and states during and after war. Therefore, the REAL ID Act is constitutional under the War Power.

Alternatively, can the REAL ID Act be upheld under the Commerce Power?

Article I, Section 8, Clause 3 of the U.S. Constitution, or the Commerce Clause, gives Congress the power to regulate commerce with foreign nations, the states, and the Indian tribes. The Necessary and Proper Clause of the Constitution can be paired with the Commerce Clause allowing Congress to enact the necessary legislation to reach their goals. Under the Commerce Clause and Necessary and Proper Clause Congress has the power to enact the REAL ID Act. 

In McCulloch v. Maryland, the Supreme Court held that the term “necessary”, used in the Necessary and Proper Clause, should be interpreted expansively to empower Congress to enact any legislation convenient to achieving their proposed ends. Since the decision in McCulloch, the scope of Congress’ Commerce Clause power has been consistently debated in the courts. The Court’s current view of the Commerce Clause is best illustrated in United States v. Lopez and United State v. Morrison.

In United States v. Lopez, the Court held that the legislation regulating the possession of guns in school zones was unconstitutional, as it did not relate to a specific economic activity. Additionally, the court defined three categories of activities that Congress could regulate under the Commerce Clause: 1) the channels of interstate commerce; 2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; 3) activities that substantially affect or substantially relate to interstate commerce.

In United State v. Morrison, the Violence Against Women Act was held to be unconstitutional, as it did not regulate an economic activity. The effects of domestic violence on commerce were not closely related enough to establish power under the Commerce Clause. In Morrison, the Court was concerned that broad grants of federal power under the Commerce Clause could lead to a slippery slope, destroying the distinction between state and national authority.

Before Lopez and Morrison, the Supreme Court generally used a Substantial Effects Test when deciding if a law was constitutional under the Commerce Clause. This test only required the Court find Congress was regulating an activity with a substantial economic effect on interstate commerce. The Substantial Effects Test showed respect for congressional intent. The categorical and economic transaction tests used in Lopez and Morrison is more limiting on congressional power. Still, the travel restrictions imposed in the REAL ID Act will be within the scope of the powers still granted to Congress under the Commerce Clause.

The REAL ID Act requires that U.S. citizens wishing to board a flight have a federally approved form of identification. Air flight concerns all of the categories, defined in Lopez, that the Court has held Congress can regulate under the Commerce Clause. First, the channels of air travel, federally regulated flight paths, are being used every time a person takes a commercial flight. Second, people are using the instrumentalities of interstate commerce, both airports and airplanes. Lastly, air travel has multiple effects substantially related to interstate commerce. For both business and leisure, people use airplanes to travel. Without access to air travel, a thriving hospitality industry, and growing global economy would come to a stop.

Finally, commercial air travel contains the necessary economic transaction. Every individual flying commercially has purchased a ticket. Most of these individuals will almost certainly cross state lines while flying. For the incredibly small minority who do not cross state lines, they will still be utilizing channels of interstate commerce, via instruments of interstate commerce.

Therefore,we believe the REAL ID Act will be found constitutional under the Commerce Clause and Necessary and Proper Clause if challenged.

Real ID Map

  • Green States – Compliant
  • Yellow States – Have received an extension
  • Red States – Not Compliant

* Although Arizona is identified as REAL ID Act compliant, the normal Arizona licenses are not compliant with the REAL ID Act. However, Arizona does allow citizens to purchase a REAL ID Act compliant license for an additional cost.

Is the REAL ID Act invalidated by the Tenth Amendment?

Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Tenth Amendment reserves to the states the powers that are not expressly or implied granted to Congress under Article 1 Section 8 of the U.S. Constitution. The Tenth Amendment confirms that the power of the Federal Government is limited by Article 1 of the Constitution and may reserve some power to the States.

Some citizens are concerned that the REAL ID Act might be unconstitutional because it infringes upon the State’s Tenth Amendment powers. In determining the REAL ID Act’s constitutionality it must be shown that the states have a choice of whether to adopt it or not. The REAL ID Act is constitutional if it either prevents state action, or gives states guidelines to meet by means of their choice without compulsion. The REAL ID Act is constitutional under the Tenth Amendment.

In New York v. United States, the Court set forth the anti-commandeering doctrine, holding that Congress may not hijack the legislative process of the States by forcing them to enact a federal regulatory program. This does not mean that Congress cannot encourage a State to regulate in a particular way, just that the States must have a choice of whether or not to comply. The Court reasoned that a choice between two unconstitutional options is no choice at all; the state was offered no option to decline the federal program no matter which path they took and thus had to comply. Additionally, a reason for the anti-commandeering doctrine is accountability of the States is diminished when, due to federal coercion, elected officials cannot regulate according to the views of their voters.

Unlike in New York, the REAL ID Act does leave the States with an alternative option to adopting the Act. States that choose not to comply with the Act effectively require their citizens to secure alternative identification like a passport, military identification, or a permanent resident card. Additionally, since States do not have to comply the elected officials are still held accountable to their voters.

In Printz v. United States the Court held the Brady Gun Bill’s requirement that county law enforcement officers administer part of a federal background check program unconstitutional. It held broadly that under the anti-commandeering doctrine “the Federal Government may not compel the States to enact or administer a federal regulatory program.” For state compliance with national regulation, there must be a leeway of means and a choice of compliance.

The REAL ID Act provides some leeway of means for states to accomplish its purpose. It sets up minimum standards for federal REAL ID licenses that states may accomplish however they choose. Unlike in Printz, the federal government here is not forcing individual state officials to implement a program. The REAL ID Act only requires states to comply with the new standards. The Act may make state legislatures draft new laws for compliance and have executives carry them into effect, but it does not specifically prescribe a procedure for them to do so. The Act only sets the minimum standards the state must meet. Since the means are left up to the state, this part of the REAL ID Act complies with the anti-commandeering doctrine and Constitution.

To be sure, citizens may be upset with their State because they will need to obtain a REAL ID or an alternative form of identification in order to enter federal buildings or to utilize commercial air travel. However, the REAL ID Act does not force citizens to purchase a REAL ID and therefore citizens and states are left with alternative options rather than adopting the Act. Under the anti-commandeering doctrine and the Tenth Amendment, states are not coerced into compliance and the REAL ID Act can be upheld as constitutional.

TSA picture of people
Photo courtesy of Jason Lander

Is the REAL ID Act invalidated by the Fourteenth Amendment?

The REAL ID Act would change the current identification system by requiring people from all states to present the same license/ID before flying on an airplane. One argument against carrying out of the REAL ID Act is that it violates the Fourteenth Amendment of the U.S. Constitution.

Under Section 1 of the Fourteenth Amendment, also called the Privileges and Immunities Clause, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” Additionally, the Equal Protection Clause says that no state shall deny any person within its jurisdiction “the equal protection of the laws.” When the REAL ID Act becomes fully effective in 2020, TSA will decline state identification that does not obey new security standards. Then, citizens of those states will not have access to domestic flights. This could be a violation of a basic right under the Constitution: the freedom to travel.

In Shapiro v. Thompson, Thompson was denied assistance under a program for aid to families on the ground that she had not lived in the state for a year before the application was filed. The Court held that a one-year residency requirement was unconstitutional because it had “a chilling effect on the right to travel.” The Constitution grants all citizens freedom to travel throughout the nation, and Congress may not pass laws that unreasonably burden or restrict this movement. The Court stated if a law’s only purpose is to chill constitutional rights by punishing people who use them, it is unconstitutional.

Similarly, some people are concerned that the REAL ID Act will affect the right of all citizens to be able to freely travel. Currently, if people want to fly on a plane, passengers are required to present their state-issued identification. If the Arizona legislature does not require drivers’ licenses to be REAL ID Act compliant, drivers who wish to travel may be forced to pay an additional cost and supply additional paperwork. These additional requirements may burden or otherwise interfere with citizen’s ability to freely travel if the State doesn’t require the citizens to obtain it.        

In United States v. Guest, an African American Reserve Officer was shot and killed by three members of the Ku Klux Klan. The accused were charged with a violating a law that makes it illegal for people to conspire to restrict any free exercise or enjoyment of any right or privilege in the Constitution. The men were accused of acting to deny African-Americans full and equal enjoyment of goods and services, including access to state highways and free travel. The Court said that the freedom to travel throughout the United States is a basic right under the Constitution under the Equal Protection Clause. While the Articles of Confederation said the people of each State should be able to freely move between states, the Constitution does not explicitly mention this right. Some commentators have said that the Constitution did not explicitly mention it, because the Framers thought that this right was so basic and necessary to the stronger Union that the Constitution created.

Additionally, in Saenz v. Roe, the State of California passed a law that gave less welfare benefits to residents who lived in their state for less than 12 months. Here, the Court looked to the Privileges and Immunities Clause, finding that the state must provide the same benefits to new residents as it does to other residents or the law violates the right to travel.

The Court’s reasoning in Guest and Saenz applies to the REAL ID Act because if a traveler does not have a REAL ID or the other permitted ID forms, they will be prevented from flying. People are concerned that this may infringe on those citizens’ right to equal enjoyment of access to air travel.

Starting January 22, 2018, if traveling by air, passengers with driver’s licenses from a non-compliant state will need to present a different form of identification accepted by the TSA (Passport or Passport Card, Global Entry cards, U.S. military IDs, airline or airport-issued IDs, federally recognized, and tribal-issued photo IDs). Starting October 1, 2020, all passengers must show a REAL ID acceptable license or another suitable form of identification for air travel. It comes down to whether the Court will think that this is an “unreasonable burden” on travelers. People will have other options, so this burden will likely not be considered “unreasonable.” Furthermore, purchasing another type of accepted identification would not cost so much as to eliminate the ability to travel.

In conclusion, the REAL ID Act probably is constitutional under the Fourteenth Amendment. It does not unreasonably burden citizens’ ability to freely travel.  

The REAL ID Act is Probably Constitutional.

The REAL ID Act is probably valid under Congress’ enumerated War Powers. Additionally, the REAL ID Act is probably valid under Congress’ enumerated power under the Commerce Clause. The REAL ID Act does not violate the Tenth Amendment or Fourteenth Amendment. Therefore, the REAL ID Act is constitutional.

One other thing to consider, regardless of the constitutionality of the REAL ID Act it is unlikely that the Court will make the final decision. The political consequences of grounding a large portion of the country will force Congress to continue pushing off enforcement of the REAL ID Act. If a substantial majority of the states become compliant, political pressures could force the others to enter compliance as well. However, if even a few states adamantly refuse to comply, Congress is unlikely to push enforcement of the Act, as grounding air travel in those areas would have tremendous political and economic costs. This type of political check on Congressional power is likely to be as effective as the power of the courts.

Is the REAL ID Act REALly unconstitutional?