L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 308, February 27, 2005
"Too busy... to pick up a pitchfork and start the revolution."
Special to TLE
There's virtually no question that something needs to be done to tighten US border control and reform immigration policy. It has been repeatedly pointed out that a lack of border control and visitor entry follow-up was responsible for the presence in America of a number of the 9/11 hijackers (adding insult to injury and illustrating the grave need for reform, the INS approved visas for two of the 9/11 hijackers six months after they flew planes into the World Trade Center). And most states are clear on the fact that illegal immigration is costing taxpayers a bundle.
When the obvious threats are combined with a shortage of Border Patrol personnel (and the disinclination of the administration to add more officers) and the politically correct notion of some states to provide illegal immigrants with driver's licenses, the need for reform goes even beyond crucial and well into the realm of critical. That's why many immigration reform groups were largely in favor of the REAL ID Act of 2005 (HR 418). The Federation for American Immigration Reform, US Border Control, and The American Resistance Foundation all urged passage of HR 418. That's probably a significant reason the measure passed handily in the House on February 10 by a vote of 261-161.
Those in favor of immigration reform like the REAL ID Act of 2005 because, among other things, it would curb the issue of driver's licenses to illegal aliens. States would be required to verify that applicants are US citizens before they could issue the license. Some note that the lead terrorist in the 9/11 attacks, Mohammad Atta, was in the country on a six-month visa, but was able to get a Florida driver's license good for six years. And since driver's licenses are typically all that's needed for such things as buying guns or getting on an airplane, such loopholes could prove to be a very bad thing indeed. The bill also gives judges a greater ability to deport those seeking political asylum in the US if they're suspected of ties to terrorism.
Of course, there are groups on the left that oppose the REAL ID Act because they consider any curb to immigration, legal or illegal, to be discriminatory. These same groups also worry that new requirements that must be met to qualify for political asylum are problematic (to be fair, in the latter case, they have a good point in that proving the motivations of those they believe likely to persecute them is difficult if not impossible). But the real opposition to the REAL ID Act has little to do with immigration specifically, and everything to do with a host of other civil liberties and constitutional matters.
Jews for the Preservation of Firearms Ownership (JPFO) has said that the REAL ID Act "has something in it to make everybody fear for their freedom." The group says that:
"States-rights advocates hate it because it gives the federal government power to determine who can get drivers licenses and how those licenses will be issued. Civil libertarians hate it because in addition to being the next giant step to a true national ID card, it calls for limitless information about us all to be placed in vast Homeland Security databases. [And] everyone should hate it because it allows the Department of Homeland Security to suspend lawsand then forbids the courts to redress this savage abuse of government power."
Unfunded mandates are often ruled unconstitutional in the courts, though it's likely in this case to be a losing proposition. If all else fails, the federal government will almost certainly dip still deeper into taxpayer pockets to ensure the provisions are met. The White House supports this legislation, the House has already approved it; to assure passage in the Senate, House officials are saying they plan to attach the measure to a "must pass" Iraqi war funding bill. There's little hope that mere opposition by some state governors and Departments of Motor Vehicles on financial grounds will prove a significant roadblock to implementation when the time comes.
Meanwhile, there are far more troubling implications to the REAL ID Act, not least of which involves the establishment of a de facto National ID card and the collection of substantial amounts of personal data on each and every one of us. Under the law, states would have to verify the information submitted by applicants, electronically scan provided documents, and then provide for the electronic storage of those scans for an indefinite period of time (now you see why states are concerned with the "unfunded" part of the mandate; the effort and expense here is considerable).
The legislation would require proof of identity for a variety of federally controlled places and services (air travel, for example, and federal courthouses among them), and any proof that doesn't meet the standards set in the REAL ID Act would be cause for a denial of services or access. That means standardization of driver's licenses from state to state, and that standardization is now set to include "a digital photograph, anti-counterfeiting features, and undefined 'machine-readable technology,' with defined minimum elements." A CNET News report goes on to say that those elements could include "a magnetic strip or RFID tag." The "minimum elements" are to be determined by the Department of Homeland Security, and everything it determines to be required will be included in the permanent database.
Think it couldn't get worse or more invasive? Think again. Once the database is established, it will be accessible not only by American officials, but likely by the Canadian and Mexican governments as well. The database represents other serious problems, too. The accuracy of such massive amounts of data is always in question; mistakes happen! The repercussions of mistakes in a database like this one, though, are substantial and dangerous to each and every person who falls victim to such mistakes (it's unlikely we'll even know there's a mistake in our data, but we'll suffer for them anyway). Even more frightening is the inherent insecurity of computer databases. This becomes especially salient when you take note of the fact that cyberterror (some radical Islamic groups are encouraging an online "holy war" to include denial of service attacks, and such efforts almost certainly would include hack attempts as well) is considered a very real threat by American intelligence.
Wouldn't it be simpler to tell states that, for reasons of national security if not for reasons of law, they can no longer issue driver's licenses to illegal aliens? Sure. But there are some who argue that more information on the driver's licenses is needed regardless, and there are others who worry about counterfeiting. Still, the truth of the matter is also simple enough: You're either here legally or you're not; and if you have enough money, technology, and expertise (and the large terrorist organizations do), anything can be counterfeited.
Both civil liberties groups (including the ACLU) and gun rights groups (the JPFO and Gunowners of America among them) are opposed to the driver's license provisions of the REAL ID Act. They have some differing reasons for their opposition, but the important thing to note is that they each have demonstrably valid points. And when such strange bedfellows are united in opposition to anything, it's best to pay attention!
Perhaps the most surprisingand least constitutionalprovisions of the REAL ID Act involves a section of the legislation that one report calls "overlooked." It seems that the provision in question "apparently gives the White House sweeping powers to suspend laws for the purpose of protecting US borders." If that's not unconstitutional enough for you, here's the real kicker: Any judicial review of such decisions is specifically prohibited!
I don't for a minute argue that immigration reform is desperately needed, that our border control needs to be significantly tightened, and that states should stop issuing legal documents of any kind to illegal aliens of all kinds. But the answers to these problems don't need to involve the drastic curtailment of liberty or the near total invasion of privacy of the millions of lawful American citizens who aren't terrorists. And they certainly shouldn't result in the essential repeal of pieces and parts of the Constitution or the Bill of Rights. The REAL ID Act does all of these things and more, which makes the REAL ID Act real scary.
In its overblown efforts to gain still more sweeping powers for its officials, and with the seemingly inarguable excuse that it's taking action to fight terrorism, Congress is working against the very things its members have sworn to defend. A hundred years ago, we would have called such actions treason. Today, I'd settle for enough of us calling our Senatorsrepeatedlyto stop the REAL ID Act from going further than it already has.
A note for those who don't think calling or writing their politicians will help: The truth is that contacting elected officials who serve at the federal level often isn't effective. But the effect we may or may not be able to have is also directly related to how many of us make contact and how passionate our arguments. Total Information Awareness was defunded because of massive public outcry; CAPPS II was shelved for the same reason. In the case of something as reprehensible as the REAL ID Act of 2005, even a delay in its implementation is better than claiming defeat without even a fight.
"All that is necessary for the triumph of evil is that good men do nothing." Edmund Burke