Can State's Rights Make a Comeback in Their Opposition to REAL ID?

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Last Friday, I watched Lou Dobbs, and his handmaiden, Kitty Pilgrim, get all hot, bothered, and appalled by the Maine state legislature voting overwhelmingly to refuse to enforce any provisions of the REAL ID act, an unfunded mandate passed by Congress in 2005, and which is supposed to go into force in May of next year.

REAL ID is the complex workaround to Congress’ failure to sell a national ID card outright, to a frightened public, in the wake of 9/11. Instead they now insist the states individually comply with precise federal standards (standards yet to be fully developed by the Dept. of Homeland Security) for driver licensing. These will probably include the requirement that residents produce birth certificates upon renewal, plus the collection of biometric data. Then, that state DMV database has to able to be accessed not only by the feds, but all the other states. This is supposed to help us fight terrorism, somehow, because the 19 hijackers had driver’s licenses.

States like Maine protested that not only was this law an unwarranted intrusion on the privacy rights of their residents, but it was a de facto national ID card in its own right, yet another foot in the door towards a totalitarian police state. The costs of implementation would be too high, projected to be in the tens of millions in each state, and would have to be passed on to the citizens somehow.

As usual, there was no federal "carrot" with such legislation, only a "stick." The stick, in this case, was that residents of states who failed to comply would either have to show a passport in order to fly, or they simply would not fly. This reminder was delivered, again, on Dobb’s show, by a sneering angry sycophant from DHS.

But this is standard operating procedure. The feds levy high taxes on the residents of the states, make sweeping, unfunded policy edicts, then enforce them by warning the state governments that failure to comply fully will result in those states not getting their own residents’ tax dollars returned to them (minus a cut) in the form of various subsidies.

But take heart — history has shown us that resistance is not futile. From 1973 to 1988 we were saddled by a particularly egregious and corrupting federal edict demanding that speed limits on highways be reduced to 55mph, ostensibly as a fuel-saving initiative. It was corrupt in that it was a total failure — non-compliance was legion, especially in western states with lots of wide-open spaces, low traffic, and too few cops. Car companies that produced vehicles with better gas mileage did more to save fuel than any federal speed law. But the stick remained: failure to enforce the "double-nickel" would result in a loss of federal highway funding.

In early 1987, then Arizona governor Evan Mecham, no stranger to controversy, had finally had enough, and told Washington they could keep their highway funding — he was raising the limits on all AZ roads to 65mph, and he didn’t care what Washington thought about it. Then, as now, feds and media talking heads alike were appalled by the audacity of a lowly state governor standing up for the rights of his state residents against the needs of the federal government. But his action enabled other states — and their residents — to stand up and cry "enough is enough!"

By 1988, 55 was history — Congress bumped it to 65. A few years later, it was bumped again to 75 in Midwest and Western rural areas, and allowed states far greater leeway to set standards that they believed worked best for them. In the late 90′s, Montana went so far as to revive their original "reasonable and prudent" rule for daytime travel — which essentially meant, "whatever speed you felt was safe under the circumstances." (That was a bit of a rush, believe me, to go 115 mph on a dry, straight, open road, and cops wouldn’t bat an eye — sadly, a federal judge later put a stop to that one.)

Therefore, it’s possible, despite all the posturing by the national-security jackboots in the Congress and DHS, that Maine’s action may have opened the door for other states to follow suit. Similar bills are pending right now in Georgia, Massachusetts, Montana, New Mexico, and Washington state. The question remains whether that door will ultimately become a floodgate.

Thomas Andrew Olson [send him mail] is a technology consultant, writer and speaker in New York City.

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