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The "National ID Card" Myth By: Henry Mark Holzer
FrontPageMagazine.com | Thursday, March 29, 2007


As usual, the “civil libertarians” are mistaken.  There’s no “national ID card,” let alone one that will destroy our “civil liberties.”

A 2005 federal statute provided that in 2008 “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.”  “‘Official purpose’ includes but is not limited to accessing Federal facilities, boarding federally regulated commercial aircraft, entering nuclear power plants, and any other purpose that the Secretary [of Homeland Security] may determine.”

Applicants for state-issued ID must provide certain kinds of proof (e.g., citizenship or legal residency), and the state-issued ID must contain certain kinds of information (e.g., name, photograph, date of birth).

Unarguably, Congress has the textual power, augmented by over 200 years of Supreme Court decisions, to legislate on a broad range of ID-related subjects—e.g., the use of passports, production of veteran documents to obtain benefits, the possession of draft and social security cards, the public display of licenses for all manner of personal and business activity.

Moreover, for federal purposes, the federal government is not obligated to accept any state identification documents.  One can’t reenter the United States, obtain VA benefits, or possess DEA privileges on the strength of a driver’s license.

Reciprocally, no state need comply with the ID statute. 

Although the Secretary of Homeland Security has the power to make administrative regulations enlarging the category of “other [federal] purposes,” he hasn’t done so.  When he does, they will be subject to judicial review.

What, then, upsets the “civil libertarians”?

Some say state compliance will be “too expensive.”  Typically, not only do they offer no proof, but, ironically, for many of them few state spending programs have ever been “too expensive”—especially if they were for some boondoggle like welfare.

Others spout empty slogans like “if we lose our identification card, we lose our identity, we lose our ability to access the services and infrastructure that society offers.”  A Texas Congressman, speaking of the statute, loftily complained that in Washington “[t]here is no rule of law.  There is no respect for the Constitution.” 

One searches in vain for any serious commentary plausibly arguing that under the Constitution and Supreme Court opinions Congress lacks the power to have enacted the statute.  Nor have any serious attempts been made to show any provision in the statute that requires states to comply—indeed, some states are considering opting out.

And perhaps most important of all, there have been no serious examples proffered of how the statute violates Americans’ civil liberties—especially today, when the United States is in at least a de facto war with radical Islam.

On the other hand, there are manifest benefits to be had from full implementation of the statute.  Foremost is greatly reducing the incalculable amount of forged and stolen identification papers that this country is awash in — from driver’s licenses, to social security cards, to credit cards, and more — all of which facilitate illegal immigration, identity theft, and other criminal activity.  

By itself, that’s reason enough for the states to cooperate.

A potentially greater reason is the impact on criminals and terrorists of, again, state-issued ID— which can’t be issued without clear proof of identity and status, and will contain crucial information of no threat to anyone engaged in lawful conduct.  It is well known that the September 11, 2001, hijackers relied on phony documents to facilitate their destruction of the World Trade Center and murder some 3,000 innocent souls.  Perhaps more stringent ID requirements would have prevented that calamity—perhaps not.

But given the stakes, neither the American government nor we the people can afford to take the chance of guessing wrong.

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Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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