Real ID Rollout Will Be a Real Problem

Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock. 

By: Alaina McWhirter

In response to the attacks of September 11, 2001, President George W. Bush ordered the 9/11 Commission, at its formation, to provide the United States Congress with suggestions to aid in the prevention of future terrorist attacks. In response to the Commission’s recommendations, the REAL ID Act (“Act”) was bootstrapped to an emergency supplemental legislative scheme and enacted by Congress in 2005. The intention of the Act was to not only respond to our nation’s post-9/11 security concerns, but to heighten the reliability of the standards used for licensing and identification in the United States. The Act, in short summary, granted the Federal government the power to dictate how States should go about the business of issuing drivers licenses and photo IDs. In theory, the goal of the Act is straightforward: to enter any federal building or participate in air travel, possessing a federally mandated REAL ID is required. In response, many states, including Arkansas, took part in the federal initiative and began issuing “REAL IDs” in order to be compliant with the Act. The deadline to obtain an Arkansas REAL ID is May 3, 2023. To obtain an Arkansas REAL ID, you are required to show proof of legal presence in the United States, proof of identity, proof of your social security number, and two documents proving current Arkansas residency. Failing to obtain the REAL ID will require a multitude of hoops to be jumped through to board any commercial airplane or enter any federal facility.

If you have ever stepped foot in the Richard Sheppard Arnold United States Courthouse, you were likely greeted by an armed federal Marshall or two, and required to show a form of identification. The Court has repeatedly held that the requirement to present photo identification for admission into federal courthouses, standing alone, does not run afoul to the fundamental constitutional right to access federal courts. Therefore, typically, as long as you present a state-issued driver’s license or photo ID, and pass through the metal detector, you are allowed to enter the building. However, the new REAL ID restriction, upon entrance to such a federal facility, assumes that persons will either present the required Arkansas REAL ID, or a U.S. passport. Nonetheless, many citizens do not hold passports, and many legally admitted residents who are subject to the jurisdiction of our federal court system cannot obtain U.S. passports. Without obtaining a REAL ID, or having been issued a federally recognized passport, both citizens and legally permitted individuals could be excluded from such federal buildings. Consequently, the REAL ID Act potentially infringes on an enumerated fundamental right recognized by both our Constitution and the Supreme Court: the right for all criminal defendants to have a public trial.

The Sixth Amendment of the United States Constitution guarantees to all criminal defendants, amongst many other rights, the right to a public trial. Article 2, Section 10 of the Arkansas Constitution recites the same language, providing for the “right to a speedy and public trial.” The Supreme Court of Arkansas has long recognized that the right to a public trial is one of the paramount safeguards in the prosecution of a criminal defendant. It enhances due process, encourages witnesses to testify, and enables the public, at large, to confirm that criminal defendants are dealt a fair hand in the progression of their trials. The issue presented by the REAL ID requirement is that it potentially excludes persons with otherwise valid government-issued identification from accessing the federal courthouse. This exclusion doesn’t stop at just the public. It includes all persons: trial counsel, witnesses, parties, spectators, families of the accused, and even court personnel. So what are we, or the Court, to do about this problem? What about a family who is denied entry into the federal courthouse and subsequently excluded from listening to witnesses testifying against their child? Why were they not allowed in? Not because they are terrorists, or because they posed any threat to the government or to anyone in that courthouse. They were denied entry because at some point in time, they stood in the DMV line and upon having their ticket number called, were told they did not have the proper documentation to obtain a REAL ID and were not qualified to receive a U.S. passport. Does this in-part deny their son’s Constitutional right to a public trial? How will they confirm their son was granted a fair shot in that courtroom at proving his own innocence? What about the witness plaintiff’s counsel anticipates calling at his or her approaching case? Did the plaintiff’s counsel inform their witness that he or she must have a valid passport or compliant REAL ID to enter? If plaintiff’s counsel didn’t, will the denial of the witness’s entry be a denial of the defendant’s due process right to confront the witnesses against him?

The REAL ID Act is a Congressional power grab, and an unconstitutional one at that. The Act gives the federal government control over citizen identification and accordingly, access to federal buildings and judicial services. The objective of the Act in aiding the war on terrorism and getting a grip on national security concerns falls flat when the implementation results in a denial of an access to the justice system and consequently, a denial of constitutionally enumerated and fundamental rights. As I have studied the potential impact the REAL ID Act will have, it is obvious that this is something Congress should have done before passing it: gained a better understanding of the impact. But, as many of us know and have seen throughout our Constitutional law education, Congress too often will pass acts and “then find out afterward whether or not they make any sense.” While I recognize the importance of national security in our country’s fight against both foreign and domestic terrorism, the implications of the REAL ID initiative are daunting and press extremely important issues. I anticipate the debate over whether or not REAL ID guarantees national security that justifies deprivation of constitutionally enumerated fundamental rights will be long fought. But in the paraphrased words of Benjamin Franklin, those who give up liberties for some security, usually end up with neither.

About the Author: Alaina McWhirter is a second-year law student at the William H. Bowen School of Law. She is a member of the Arkansas Journal for Social Change and Public Service and serves as Secretary of the Student Bar Association.

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