Welcome to Call to Decision 

West Virginia Should Reject Real ID Act 

By Sen. Clark Barnes  R-15th District 

The Inter-Mountain, Elkins, W.Va.

Monday, August 13, 2007, Page 3 

Federalism is fast becoming an archaic term, like those often employed by Shakespeare or Chaucer. The word itself may not disappear, but the concept behind it is becoming as antiquated as the documents that first spoke of it. The implementation of the Real ID program would push federalism deeper into irrelevance.

The Real ID Act - passed by Congress in 2005 - establishes nationwide standards for state-issued driver's licenses and non-driver identification cards, among making other changes intended to help combat terrorism. These new cards would have to contain certain common information, which would then be kept in a state-run database that could be linked to others like it throughout the nation. This de facto national database could be used by law enforcement in an "anti-gun" state to justify searching the car of a visiting West Virginia sportsman who recently purchased a rifle for hunting. Gun ownership is just one piece of information that would be stored as a result of Real ID.

While certainly well-intentioned, the coercive nature of the act further strengthens the role of the federal government at the expense of state sovereignty. To truly understand the impact, one has to go back to the beginning of the nation.

During our nation's formative years, many delegates to the Constitutional Convention were reluctant to give the new federal government too much power. It was recognized by the framers that the states should be allowed to govern themselves for the most part, with only certain enumerated powers granted to the federal government. This was a part of the larger concept of checks and balances - the states would act as a check on the power of the federal government, and vice versa.

Since that time, the state - federal relationship has changed quite a bit. Throughout parts of the 19th century, the states enjoyed a fair bit of sovereignty, able to set whatever public policies they wanted, as long as they complied with the Constitution. Issues over slavery and civil rights changed the face of federalism in an effort to protect human rights. In these cases, the power of the states was eroded for the common good but the fundamental principles of federalism remained intact.

However, in more modern times, state governments exercise a token amount of power, allowed only to regulate activities that aren't (yet) subjected to federal laws. The states - once called laboratories of democracy - are compelled to implement federally mandated government programs instead of crafting their own. Creative democracy is hindered by rigid federal guidelines; conformity takes precedence over effectiveness.

This recent shift in the nature of federalism occurred not because of changes to the Constitution but because of changes in the way it is interpreted. This is the case with Real ID. Theoretically, the federal government cannot force the states to change the way they design driver's licenses. Such a direct requirement would be outside the power of Congress, even in light of recent U.S. Supreme Court decisions.

However, the Real D Act withholds federal funds for states that do not participate. In addition, it prohibits federal agencies from accepting state-issued IDs that do not conform to Real ID standards. This means that, after the law takes effect, a non-conforming ID cannot be used to get a passport, collect Social Security payments or even board an airplane.

As such, Real ID is an example of what some call coercive federalism. States, in theory, can still control their own public policies. However, the federal government uses economic coercion to direct internal state policy. Threats of withheld funding or other practical concerns effectively rewrite the Constitution in favor of greater federal power.

This concept is not just limited to Real ID. Coercive federalism is responsible for many changes to public policy over the last 20-plus years. The lowering of the drinking age, the use of .08 as the legal blood-alcohol limit for DUIs, the implementation of No Child Left Behind – these are all examples of coercive federal acts. In each case, failure to bow to the will of the federal government means less money for highways or education or some other important government service.

The states may be partly to blame for the rise of, coercive federalism. When the drinking age was lowered, several states complained about the intrusion of federal government into local policy. Some even took the U.S. government to court. But in the end, all 50 states - afraid of losing 5 percent of their federal highway funding capitulated.

Now, states are presented with another chance to fight against the encroachment of federal power. Already, several states, citing the high, cost of implementing Real ID, are refusing to obey the edicts of the federal government.

In January, Maine passed a resolution refusing to implement Real ID. More than a dozen other states followed Maine's example. My hope is that West Virginia will soon join that growing list. I introduced legislation last session that would have done just that, and I will introduce similar legislation again.

Fortunately, due to the complaints from the states and the extensiveness of the changes required, the implementation of Real ID was postponed until December 2009. This means there's still time for West Virginia and our fellow state legislatures to lobby for the repeal of Real ID. Successfully, doing so will show that federalism - true federalism - is not some historical curiosity but a vibrant model for modern American governance.