D-Day is more than just the glorious day that began the end of World War II. It is the general term for any major military operation, along with H-Hour and perhaps M-Minute in cyber war. Here’s my report from a curious move in our nation’s War on Terror: REAL ID Day.
On May 7, 2025, the Transportation Security Administration (TSA) was scheduled to attack American air travel. Terrorism works by inducing overreaction from victim states. So, yes, the TSA’s work to restrict travel by law-abiding Americans gives a win to the 9/11 attackers, nearly a quarter-century on. No doing business in other states, no visiting the new grandbaby—unless you have enrolled in the national ID system created by the REAL ID Act.
But the attack didn’t come. Department of Homeland Security (DHS) Secretary Kristi Noem announced the day before that American travelers would not be turned away. As The Wall Street Journal’s travel columnist reported, lines were shorter at many airports. My experience flying on May 9 without a federally compliant ID was smooth. I decline strip-search machines, so I already get a pat-down (or “freedom massage”) each time I fly, which is probably what travelers with noncompliant IDs got.
That was not an abject loss for the agency. As it has done so many times before, it abandoned its improvised deadline, but it did so later and less clearly than before. Many people still operate under the impression that they must show a federally compliant license at TSA checkpoints. That belief represents a significant gain for the national ID project.
But that gain comes at a cost. DHS has adopted an interpretation of the REAL ID Act that is unsupported by its text. Any expansion of the national ID system through such means represents overstretch that could lead to collapse.
Let’s review the dynamics of that overstretch. A year ago, I predicted (twice) that the REAL ID deadline would not arrive. On May 6, with the deadline apparently impending, an NPR interviewer asked me (not unkindly) what to make of the deadline’s arrival. (My part of the program starts at about minute 27.)
REAL ID deadlines have always fallen because the statute requires DHS to determine states’ compliance or non-compliance. If DHS deems a state noncompliant, TSA must turn away all travelers from that state—whether they have a federally compliant ID or not. That prospect is untenable, so the deadlines have always been postponed.
When Congress passed the REAL ID Act two decades ago and DHS fleshed out its details, states under leadership from both major parties resisted. The burdens of actual full compliance are massive, numerous, and onerous. State leaders expressed concern with the cost of this unfunded federal mandate and their constituents’ privacy and data security.
To create the appearance of progress and bring recalcitrant states on board, DHS routinely declared states compliant despite their failure to meet all statutory requirements. DHS retreated to pared-down “compliance factors,” eventually declaring all states compliant, even though they are not.
But this has the DHS and TSA in a box. With all states officially “compliant,” there is no cause to turn away any traveler. So the agency began threatening to refuse travelers who lack federally compliant IDs.
On NPR, I talked a lot about the weakness of identity-based security against significant threats. Eliminating REAL ID would have essentially no impact on national security, and it would improve our overall welfare. Congress should repeal it.
In the coming weeks and months, travelers without federally compliant IDs will be able to access air travel. Selectively, perhaps, some travelers without REAL IDs will be turned away for saying the wrong thing to a TSA supervisor, for traveling while black, or some other unknown reason. This is the stuff of irregular government procedures. So far, only one print reporter I know has read the REAL ID statute to see whether TSA is acting consistently with the authority Congress gave it.
But one of those cases will open up the TSA to the lawsuit that collapses its national ID plans. A little focus on what the statute does from a judge trained to apply statutes as written will produce a ruling showing that TSA does not have the authority to turn travelers from compliant states away from airports.
I count it as a stalemate. The TSA’s moderate advance on REAL ID Day foretells collapse, sooner or later, of the national ID project.
The post REAL ID Day After-Action Report: Stalemate appeared first on American Enterprise Institute – AEI.
