GOP split on re­peal of Real ID; 2005 law au­thor calls bill un­con­sti­tu­tional

The Washington Times Weekly - - National - By Stephen Di­nan

Con­gres­sional Repub­li­cans are scram­bling to defuse the po­lit­i­cal time bomb they cre­ated in 2005 when they al­lowed states to is­sue driver’s li­censes to il­le­gal aliens — but a key Repub­li­can and au­thor of the Real ID Act says their new bill is un­con­sti­tu­tional.

“Driver’s li­censes are is­sued by the states, not the fed­eral gov­ern­ment. I do not be­lieve it is con­sti­tu­tional for the fed­eral gov­ern­ment to tell the states who they can is­sue driver’s li­censes to and who they can’t is­sue driver’s li­censes to,” said Rep. F. James Sensen­bren­ner Jr., the Wis­con­sin Repub­li­can who wrote the 2005 law and its pro­vi­sion al­low­ing states the op­tion of giv­ing li­censes to il­le­gal aliens.

New York Gov. Eliot Spitzer put the is­sue on the na­tional stage two months ago when he said New York would be­come the ninth state to is­sue li­censes to il­le­gal aliens.

Mr. Spitzer dropped that plan last week, and some Demo­cratic law­mak­ers pre­dicted other states that is­sue li­censes to il­le­gal aliens will fol­low suit.

Still, in the in­ter­ven­ing weeks it has be­come a ma­jor headache for Democrats, cre­at­ing a split that threat­ened to hurt even the pres­i­den­tial cam­paign of Sen. Hil­lary Rod­ham Clin­ton, who fum­bled when asked about her gov­er­nor’s plan.

But it’s now turn­ing into a Repub­li­can fight as well.

Rep. Vito J. Fos­sella, New York Repub­li­can, on Nov. 13 in­tro­duced a bill to re­peal part of Mr. Sensen­bren­ner’s 2005 law and pre­vent states from is­su­ing li­censes to il­le­gal aliens. He also threat­ened states’ high­way funds if they fail to com­ply with the law.

“The gov­er­nor has left Congress no choice but to try to stop this from go­ing for­ward,” Mr. Fos­sella said. He was joined in spon­sor­ing the bill by Rep. Peter T. King, the top Repub­li­can on the Home­land Se­cu­rity Com­mit­tee, and by four other Repub­li­cans.

But Democrats say Repub­li­cans have only them­selves to blame for the way the law reads now, given that House Repub­li­cans wrote it and forced it through Congress and onto Pres­i­dent Bush’s desk.

“All’s fair in po­lit­i­cal cam­paigns, but this is the height of dem­a­goguery for some­one who helped write the Real ID Act to then protest so loudly what a crummy law it was,” said Rep. An­thony Weiner, New York Demo­crat.

The Real ID Act passed the House in Fe­bru­ary 2005 on a 261161 vote, and Repub­li­can lead­ers then tacked it to the bot­tom of an emer­gency spend­ing bill that passed the Se­nate unan­i­mously and the House on a 368-58 vote. Mr. Bush signed it into law that May.

It came in re­sponse to the Septem­ber 11 com­mis­sion’s re­port that found fake li­censes were a key part of the ter­ror­ist at­tacks.

The law sets stan­dards for li­censes to be us­able for fed­eral pur­poses such as board­ing an air­plane, en­ter­ing a fed­eral build­ing or con­duct­ing some fi­nan­cial trans­ac­tions — in­clud­ing the re­quire­ment that the holder be in the coun­try legally. But the law also specif­i­cally al­lows states to is­sue non­com­pli­ant li­censes, as long as they are marked.

New York and sev­eral other states have cho­sen to is­sue tiered li­censes, with a lesser ver­sion avail­able to il­le­gal aliens.

A Fox 5-The Wash­ing­ton Times-Ras­mussen Re­ports poll re­leased two weeks ago found vot­ers over­whelm­ingly op­pose is­su­ing driver’s li­censes to il­le­gal aliens and so far, Democrats have taken the po­lit­i­cal heat for Mr. Spitzer’s de­ci­sion.

Repub­li­can pres­i­den­tial can­di­dates have used it to bash the Demo­cratic can­di­dates, and Ru­dolph W. Gi­u­liani even took credit for the new House bill, telling re­porters two weeks ago that he had en­cour­aged Mr. King to in­tro­duce it.

But Mr. Weiner said it’s an is­sue that hits Repub­li­cans as well.

“Spitzer han­dled it poorly, that’s al­most be­yond de­bate at this point, but it doesn’t change the fact that there have been a lot of gov­er­nors, in­clud­ing [for­mer gov­er­nor Mike] Leav­itt in Utah, that took ad­van­tage of hav­ing a kind of driver’s per­mit for the un­doc­u­mented,” he said.

Mr. Bush’s brother, Jeb, also en­dorsed such a plan in 2004 when he was gov­er­nor of Florida.

Mr. Sensen­bren­ner said that should be their right as state of­fi­cials.

“I don’t know how many states have taken ad­van­tage of this pro- vi­sion, but as far as I’m con­cerned, that’s some­thing gov­er­nors and state leg­is­la­tors are go­ing to have to face up to them­selves in our fed­eral sys­tem,” he said.

Mr. Sensen­bren­ner also said he doubts the in­ter­state com­merce clause of the Con­sti­tu­tion would give Congress the power to tell states who they can is­sue li­censes to.

At the time he wrote the act, Mr. Sensen­bren­ner’s own state of Wis­con­sin was among those that al­lowed il­le­gal aliens to get driver’s li­censes. The state has since changed its pol­icy.

Mr. Sensen­bren­ner also said chang­ing Real ID would open the bill up to amend­ments on the House or Se­nate floor that could gut the 2005 law, could give the Amer­i­can Civil Lib­er­ties Union (ACLU) new grounds for a court chal­lenge, and would stoke the fears of a na­tional iden­ti­fi­ca­tion card.

“If there’s a na­tional pol­icy then a driver’s li­cense be­comes a na­tional ID card,” he said, adding that “ends up play­ing into the fears of the ACLU and the peo­ple on the far right that the Real ID is in fact a na­tional ID card.”

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