For my next trick, I hereby predict the fall of the new May 7, 2027 REAL ID compliance deadline. If you’re not a regular reader of my REAL ID posts, here’s the joke: Every REAL ID compliance deadline goes by the wayside. You won’t ever have to get a REAL ID. And when I wrote here and in The Atlantic earlier this year about the impending collapse of the May 2025 deadline, it was as insightful as predicting sunshine in the Sahara.

But the way REAL ID deadlines fall is always interesting. So let’s review and consider one way the national ID law might move from endless delay to a welcome collapse.

The REAL ID Act is a law passed hastily by Congress in 2005. Repealing identity security legislation that was inspired by the 9/11 Commission report, REAL ID created a national ID system right here in the freedom-loving United States. It gave the Department of Homeland Security (DHS) authority to implement it and states the responsibility to follow DHS’s directives.

The federal government can’t regulate states directly, so the way REAL ID works is by denying federal acceptance of drivers’ licenses and ID cards that don’t follow federal requirements. “Beginning 3 years after the date of the enactment of this division,” the Act said, “a Federal agency may not accept, for any official purpose, a driver’s license or identification card issued by a State to any person unless the State is meeting the requirements of this section.” DHS would certify which states are in compliance and which states are not.

The legislation passed on May 11, 2005, and the statutory compliance deadline was three years later, May 11, 2008. You knew things weren’t going well when DHS finalized the REAL ID regulations at the end of January 2008, telling states just months before the official deadline what they needed to do. So right there in that regulation, DHS extended the compliance date, and the compliance-date cascade was on.

The authority for such extensions was in the law. It said DHS “may grant to a State an extension of time to meet the requirements of [the section quoted above] if the State provides adequate justification for noncompliance.”

Now, why have I been quoting picayune statutory details? Because the new change in compliance deadline does something that Congress doesn’t allow.

The new change treats the current deadline as staying in force. But it gives federal agencies leeway as to how they enforce it for two more years.

That enforcement flexibility can have a variety of looks, according to DHS. It might be the “informed compliance” model, in which agencies let people through without REAL IDs while informing them that they really should get one. Then there’s the “informed compliance with limits” model, in which you get a few chances to travel without a compliant license before they shut you down, like a “three strikes” system. At scale, it’s politically infeasible, so expect to see none of it at airports—unless someone making decisions at the Transportation Security Administration is foolish.

Agencies can invent their own model. They just have to report to DHS about it and post it on their websites.

But there’s one thing wrong with the whole phased-in enforcement plan: Congress didn’t allow it.

Remember the statutory sections quoted above? Federal agencies “may not accept” licenses from states that don’t meet REAL ID’s requirements—full stop. DHS doesn’t have the power to change that rule. Congress requires refusal of IDs from noncompliant states, using clear, unequivocal language.

DHS has power only to certify states as compliant, making their licenses acceptable by agencies. I’ve noted before that DHS has used its compliance power liberally, to treat states as compliant when they’re not. But that power is not susceptible to “phasing in” per person, per checkpoint, or per agency. It is state by state only.

With the Supreme Court directing attention to what statutes actually say these days, there’s more to learn from reading REAL ID with care. It doesn’t require agencies to check REAL ID–compliant licenses. It says agencies can’t accept licenses and IDs from noncompliant states. So DHS’s wholesale certification of states as compliant means agencies are free to accept any ID from those states.

And—unless Congress wises up and repeals REAL ID—that might be its downfall. Someone from a compliant state who is turned away at an airport may have a cause of action for that agency’s arbitrary refusal of their ID, because refusing an ID from a compliant state has no sanction at all in the misbegotten and moribund REAL ID Act.

The post Phased-In REAL ID Enforcement Is out of Phase with the Law appeared first on American Enterprise Institute – AEI.