It’s been 20 years since Congress passed one of the most onerous, useless and constitutionally dubious pieces of legislation in modern history. The so-called REAL ID Act comes into force today, and if your driver’s license isn’t REAL ID-compliant and you don’t have some other form of government-approved identity card, you won’t be able to board a domestic flight unless you’re willing to go through as-yet unspecified extra steps.
At its core, the mentality behind REAL ID is that every American is a potential airline terrorist first and a citizen of the Republic a very distant second. Who do we have to thank for this terrible idea? The 9/11 Commission. In fact, it was one of its core recommendations.
The mentality behind REAL ID is that every American is a potential airline terrorist first and a citizen of the Republic a very distant second.
As the commission noted in its final July 2004 report, “All but one of the 9/11 hijackers acquired some form of U.S. identification document, some by fraud. Acquisition of these forms of identification would have assisted them in boarding commercial flights, renting cars, and other necessary activities.”
In response, the commission recommended that the federal government “should set standards for the issuance of birth certificates and sources of identification, such as drivers licenses.” The report noted: “Fraud in identification documents is no longer just a problem of theft. At many entry points to vulnerable facilities, including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists.”
But that entire notion is refuted by the fact that the most effective last-ditch protection against bad actors among the public boarding an aircraft is physical screening of the passengers and their luggage.
I’m not aware of a single post-9/11 incident in which an actual terrorist — such as the so-called shoe bomber or the “underwear bomber” — boarded an aircraft with a fake ID. Yet those two made it aboard aircraft with explosive or incendiary devices that could’ve brought down the planes they were on and killed all aboard. TSA’s struggle with passenger screening technologies and procedures is well-known and represents a far bigger safety issue than determining who is boarding a given aircraft.
Indeed, years before REAL ID became law, the federal government used secret directives to airlines to prevent travelers from boarding airliners unless they presented identification.
In the case that challenged that practice, Gilmore v. Gonzalez, plaintiff John Gilmore argued that the Constitution did not permit the country’s air carriers to require passengers to display ID to travel by air. After reviewing the federal government’s secret airline security directives — which Gilmore’s lawyers weren’t permitted to see — the 9th U.S. Circuit Court of Appeals ruled for the federal government, noting, “Although we recognized the fundamental right to interstate travel, we also acknowledged that ‘burdens on a single mode of transportation do not implicate the right to interstate travel.’”
Gilmore appealed to the Supreme Court, but it declined to take the case — an abdication of responsibility that has created a two-tiered, discriminatory travel system in America.
The premise that all air travelers must prove their identities through presenting REAL ID credentials implicitly treats all citizens as potential terrorists until declared otherwise by the federal government. The REAL ID Act effectively institutes a form of mass surveillance and verification that doesn’t discriminate between those who have given reason for suspicion and those who haven’t.
When the government imposes REAL ID requirements on air travel but not train travel (which it doesn’t), it creates a two-tiered travel system. Those who comply with REAL ID can access all modes of transportation, whereas those who don’t or can’t comply are restricted to radically slower modes of travel. This has real-world implications for the traveling public.
It’s been 20 years since Congress passed one of the most onerous, useless and constitutionally dubious pieces of legislation in modern history. If I receive word that my sister in rural Missouri has suffered a stroke and may not survive much longer, I can catch a plane from an airport in the Washington, D.C., region and be at her bedside in less than 12 hours — if I have a REAL ID-compliant credential to board the aircraft. If not, it’s a two-day drive at least to reach her, by which time she may well be dead. Now that REAL ID has gone into effect, this won’t be a hypothetical scenario — it will happen to real families across the country. The REAL ID ACT also raises several constitutional issues that have never been adjudicated. The disparate approach to regulating different modes of travel implicates the constitutional doctrine of “unconstitutional conditions” — a principle that prohibits the government from conditioning the receipt of a benefit (in this case, the ability to use a particular mode of transportation) on the surrender of a constitutional right (the right to travel). REAL ID also potentially creates an end-run around direct regulation of the right to travel. The Supreme Court has consistently ruled that the federal government can’t directly prohibit interstate travel, but by making it increasingly difficult to travel without REAL ID, the government accomplishes a similar result indirectly. Moreover, it raises equal protection concerns. When fundamental rights are at stake, differential treatment of citizens requires a compelling government interest and narrow tailoring. The question becomes whether the security benefits of REAL ID justify the burden placed on particular modes of travel. The record to date clearly shows they do not. Finally, it implicates the principle of proportionality in constitutional law — whether the restriction on rights is proportional to the government interest being served. The differential treatment of air and rail travel exposes the hypocrisy and inconsistency in how the government assesses security risks and the appropriate responses to those risks. The government has no business knowing who I am or why I’m traveling domestically on an airliner unless I’m wanted for a crime or have given reason to suspect my intentions by having weapons on my person or in my luggage during screening. REAL ID obliterates the idea of freedom of travel, which is why it should be abolished.
Patrick G. Eddington
Patrick G. Eddington is a senior fellow at the Cato Institute. He is a former CIA analyst and ex-House senior policy adviser and the author of "The Triumph of Fear: Domestic Surveillance and Political Repression from McKinley through Eisenhower." 
