Real ID Is Useless, Unconstitutional, and Finally Here
In the case that challenged that practice, Gilmore v. Gonzalez, plaintiff John Gilmore argued that the Constitution did not permit the country’s air carriers to require passengers to display ID to travel by air. After reviewing the federal government’s secret airline security directives — which Gilmore’s lawyers weren’t permitted to see — the 9th U.S. Circuit Court of Appeals ruled for the federal government, noting, “Although we recognized the fundamental right to interstate travel, we also acknowledged that ‘burdens on a single mode of transportation do not implicate the right to interstate travel.’”
Gilmore appealed to the Supreme Court, but it declined to take the case — an abdication of responsibility that has created a two-tiered, discriminatory travel system in America.
The premise that all air travelers must prove their identities through presenting REAL ID credentials implicitly treats all citizens as potential terrorists until declared otherwise by the federal government. The REAL ID Act effectively institutes a form of mass surveillance and verification that doesn’t discriminate between those who have given reason for suspicion and those who haven’t.
When the government imposes REAL ID requirements on air travel but not train travel (which it doesn’t), it creates a two-tiered travel system. Those who comply with REAL ID can access all modes of transportation, whereas those who don’t or can’t comply are restricted to radically slower modes of travel. This has real-world implications for the traveling public.
If I receive word that my sister in rural Missouri has suffered a stroke and may not survive much longer, I can catch a plane from an airport in the Washington, D.C., region and be at her bedside in less than 12 hours — if I have a REAL ID-compliant credential to board the aircraft. If not, it’s a two-day drive at least to reach her, by which time she may well be dead. Now that REAL ID has gone into effect, this won’t be a hypothetical scenario — it will happen to real families across the country.
The REAL ID ACT also raises several constitutional issues that have never been adjudicated.
The disparate approach to regulating different modes of travel implicates the constitutional doctrine of “unconstitutional conditions” — a principle that prohibits the government from conditioning the receipt of a benefit (in this case, the ability to use a particular mode of transportation) on the surrender of a constitutional right (the right to travel).
REAL ID also potentially creates an end-run around direct regulation of the right to travel. The Supreme Court has consistently ruled that the federal government can’t directly prohibit interstate travel, but by making it increasingly difficult to travel without REAL ID, the government accomplishes a similar result indirectly.
Moreover, it raises equal protection concerns. When fundamental rights are at stake, differential treatment of citizens requires a compelling government interest and narrow tailoring. The question becomes whether the security benefits of REAL ID justify the burden placed on particular modes of travel. The record to date clearly shows they do not.
Finally, it implicates the principle of proportionality in constitutional law — whether the restriction on rights is proportional to the government interest being served. The differential treatment of air and rail travel exposes the hypocrisy and inconsistency in how the government assesses security risks and the appropriate responses to those risks.
The government has no business knowing who I am or why I’m traveling domestically on an airliner unless I’m wanted for a crime or have given reason to suspect my intentions by having weapons on my person or in my luggage during screening. REAL ID obliterates the idea of freedom of travel, which is why it should be abolished.
Patrick G. Eddington is Senior Fellow, Cato Institute. This article, originally posted to the Cato Institute website, is published courtesy of the Cato Institute.
