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