Outside the Beltway

New Hampshire May Refuse National ID Compliance

James Joyner · Friday, April 14, 2006 · 4 comments

The New Hampshire legislature appears ready to revolt over REAL ID, setting up a confrontation with the federal government.

New Hampshire lawmakers are considering a proposal to reject a federal mandate for national identification standards. The state House last month passed a measure, H.B. 1582, to refuse participation in a program created under a 2005 law that requires state-issued IDs to meet national standards by 2008. The New Hampshire proposal has been forwarded to the Senate for further consideration.

The Granite State would be the first to refuse to comply with the federal statute, which is known as the REAL ID Act. The California Senate last year passed a bill to block the use of radio-frequency identification chips in driver’s licenses, which might be required by REAL ID regulations, but the measure since has stalled.

The lawmakers behind the New Hampshire proposal argue that the federal law effectively would establish a national ID system that would threaten civil liberties. They also have voiced concerns that the law is an unfunded mandate that places an unfair financial burden on states to comply. But others are worried about the consequences of rejecting the federal statute. The Union Leader in Manchester, N.H., reported that at a Monday Senate committee hearing, several lawmakers voiced concern that state residents would be forced to use passports to board domestic airplane flights if REAL ID is rejected.

In written testimony submitted to the committee, Jim Harper, the director of information policy studies at the Cato Institute, said it would be a grave mistake for New Hampshire lawmakers to stick with the REAL ID program out of fear that they would lose $3 million in federal grant money to comply with the law. Harper cited a report released last year by a Virginia task force that estimated full compliance with REAL ID in the Old Dominion State would cost as much as $63 million per year. He also noted an estimate from the National Conference of State Legislatures that it would cost $9 billion for states to implement REAL ID nationally.

Whatever the merits of the nullification doctrine might have once had, the states lost this fight 141 years ago. There is simply no question that the federal government has to power to issue regulations involving interstate commerce, let alone those with national security implications.

Further, whatever one thinks of unfunded mandates–Republicans used to be opposed to them, banning them in 1995 pursuant to the Contract with America–there is no constitutional prohibition on their use. Indeed, Congress has been passing down unfunded mandates since at least the New Deal.