Montana and DHS Go to Eye-to-Eye, and DHS Blinks

March 21, 2008 12:00 am

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WASHINGTON – In the strongest confirmation yet that the Department of Homeland Security (DHS) is caving in to state resistance on the Real ID Act, DHS today agreed not to enforce the requirements of the Real ID Act on the state of Montana, even though the state has passed a law prohibiting implementation. To date, nearly a dozen states have received extensions without committing to comply with the act – including three states in which the legislatures have actually passed statutes barring compliance. In other cases, DHS has granted extensions despite explicit statements disclaiming any intention of complying.

“Montana Governor Brian Schweitzer bet his ranch that Real ID would never be enforced against his state,” said ACLU Technology and Liberty Program Director Barry Steinhardt. “The Governor saved both his ranch and the people of Montana from a real nightmare. Montana stared down Secretary Michael Chertoff’s threats and exposed the Department of Homeland Security for what it is: a paper tiger.”

Real ID mandates that states alter their drivers’ licensing procedures to comply with federal standards in order for their licenses and ID cards to be accepted for boarding airplanes and entering federal buildings. Even though Montana’s Attorney General explicitly told the Department that it could not comply based on a law passed unanimously by its legislature, DHS today told Montana that its licenses will continue to be accepted for federal identification purposes.

“DHS has created a new term in the Washington lexicon: ‘material compliance’ – a euphemism for complying with a law by rejecting it,” said ACLU Senior Legislative Counsel Tim Sparapani. “The Real ID Act was wrongheaded to begin with, and now the house of cards is tumbling down. This concession is proof positive that in the face of opposition from the states, DHS will blink every time. Congress needs to step in and replace Real ID with a plan that works.”

Montana is one of seven states that passed legislation in 2007 to bar implementation of Real ID. In addition, 11 states have passed resolutions either opposing Real ID implementation or demanding that Congress repeal the Act. The Department of Homeland Security offered states an extension on the law’s May 11, 2008 deadline as long as they promise to comply eventually. In late February, New Hampshire also requested an extension while asserting that it would not comply. DHS is still contemplating whether to accept New Hampshire’s defiant request. Maine and South Carolina are refusing to request the extension.

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