If you say you’re going to do something, then do it; don’t start doing the opposite and claim you aren’t really acting that way. In essence, that’s the dilemma Louisiana finds itself in over the REAL ID Act as it is complying substantially with it even as state law prohibits that.
Passed in 2005 to override a less-structured version, the Act’s purpose is to have states produce identification such as drivers’ licenses securely in a very tamper-resistant way. Some funds, not enough to cover the anticipated costs, have been provided for the purpose, and its deadline has been extended on a few occasions to Jan. 15, 2013, with rules issued in the interim to guide implementation. The penalty for noncompliance is refusal of federal agencies to accept state identification for things such as air transport.
A number of states, Louisiana included, did not act enthusiastically to the law’s presence. In fact, in 2008, state Rep. Brett Geymann authored what would become Act 807, passing handily with Gov. Bobby Jindal’s signature, joining laws from other states prohibiting the state from implementing its provisions, citing several reasons among which was it made it more likely that the state Constitution’s right to privacy could be violated.
And up until earlier this year, Louisiana was the state the farthest away from implementation of the 39 benchmarks laid down in the rule. But in the intervening several months, things seemed to have happened suddenly and now, according to a media report, the state will be in compliance of 37 of them by the target date.
One of the noncompliance issues appears to be over whether card stock has preprinted numbers, as the Act with rules specifies “States must issue REAL ID driver’s [sic] licenses and identification cards produced on serialized card stock” and Louisiana’s are blank. This is made a bigger issue because Louisiana, unlike the majority of states, does not have a centralized issuance facility; you can get your card at any of the 81 issuing locations mere moments after a successful renewal or application, meaning adequate security measures must be enforced at all of those locations. Perhaps the state’s required security plan will pass muster with the federal government on this point even without preprinted serial numbers on blank stock.
But the remaining issue may be intractable. Simply, CFR 6 part 37.17(n) requires that “The card shall bear a DHS[Department of Homeland Security]-approved security marking on each driver’s license or identification card that is issued reflecting the card’s level of compliance….” Even as the state has made changes to its system that reflect everything in the Act, it can argue that all of these would have been done as a result of its own internal processes to improve matters, saying that these things happened “coincidentally” to the Act’s requirements and deadline. But to place the DHS seal of approval, necessary so federal security officials know it is an acceptable identification, would be the most blatant violation of the state law possible.
So what can the state do? Geymann, never shy from leading a parade about something eye-catching and popular even if it means doing a complete policy about-face, now says the state might as well go whole hog on implementation. Yet this would require repeal of the law unless the state wants to act completely hypocritically and flout the rule of law itself by ignoring it. Repeal, of course, could not happen absent a costly special session until the regular session well after the deadline, or at least then to amend the law to add something along the lines of aspects of state policy in the matter are unconnected entirely to the Act, and that the state will provide a marking independently of any federal government requirements that announces its high degree of security features and reflective of a secure production process – then hope that DHS “coincidentally” accepts this as compliance with the rule.
Maybe announcing this to DHS will get a few months’ grace period from it to buy time to change the law, and then do it. Otherwise, Louisiana residents, get set concerning air travel to produce a passport or to undergo full cavity body searches by grinning, recently unionized Transportation Security Administration employees starting early next year.