Real ID Rollout Will Be a Real Problem
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By: Alaina McWhirter
In response to the attacks of September 11, 2001, President George W. Bush ordered the 9/11 Commission, at its formation, . In response to the Commission’s recommendations, the REAL ID Act (鈥淎ct鈥�) was bootstrapped to an scheme and enacted by Congress in . The intention of the Act was to not only respond to our nation鈥檚 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. 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 鈥淩EAL IDs鈥� in order to be compliant with the Act. The deadline to obtain an Arkansas REAL ID is . 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 . 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, , 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 . 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 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, . Article 2, Section 10 of the Arkansas Constitution recites the same language, providing for the 鈥溾�� The Supreme Court of Arkansas has long recognized that the in the prosecution of a criminal defendant. It enhances due process, 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 from accessing the federal courthouse. This exclusion doesn鈥檛 stop at just the public. It includes all persons: trial counsel, witnesses, parties, spectators, families of the accused, and even . 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鈥檚 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鈥檚 counsel anticipates calling at his or her approaching case? Did the plaintiff鈥檚 counsel inform their witness that he or she must have a valid passport or compliant REAL ID to enter? If plaintiff鈥檚 counsel didn鈥檛, will the denial of the witness’s entry be a denial of the defendant鈥檚 due process right to confront the witnesses against him?
The REAL ID Act is a Congressional , 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 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 鈥�.鈥� While I recognize the importance of national security in our country鈥檚 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, .
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.