Características exigibles a los productos

Although the proposed rule had authorized states to access each other’s databases electronically, this provision was withdrawn in the final rule due to concerns raised by commenters, including states. Instead of specifically authorizing such access by states, the PIA accompanying the final rule explains that states may use existing processes to transfer information regarding a prior motor vehicle record when an individual seeks to move a license from one state to another.²¹⁹

To address concerns about including the address of certain categories of people for whom state laws authorize not disclosing that information, the final rule authorized the true address to only be maintained securely in the records of the state motor vehicle departments as opposed to being included on the face of the cards or captured in the MRZs.²²⁰

F. CONCLUSION

The events of 9/11, and the recognition of the need for more secure identification documents, resulted in a significant and controversial regulatory scheme to develop more secure state issued driver’s licenses and identification documents. A key consideration in the rulemaking process was determining the technology to be used by encoding information within those documents to enable the authentication of the document. DHS considered both 2D Barcode, as well as RFID technology, and ultimately, determined that the 2D Barcode technology best suited its operational needs while reducing risk to the security of the PII, and facilitating interoperability for law enforcement purposes. As the states begin to issue REAL ID compliant documents, as technology progresses, and as additional uses for the REAL ID documents become a possibility, it will be necessary for DHS to monitor the effect of the 2D Barcode standard. It may also be the case that as technology progresses and additional security measures are developed, RFID technology may be reconsidered as the acceptable technology standard.

219 Department of Homeland Security, “Privacy Impact Assessment for the REAL ID Final Rule,” 12.

220 Ibid., 10.

V. THE CLAIM THAT REAL ID VIOLATES THE TENTH AMENDMENT AND CONSTITUTES AN UNFUNDED MANDATE

This chapter focuses on the claim that REAL ID violates the Tenth Amendment and constitutes an unfunded mandate. REAL ID has come under assault by a number of states, which have resisted its implementation and label it an intrusion into state sovereignty, as well as an unfunded mandate. One of the significant impediments to the full implementation of REAL ID is that the states, through the National Governor’s Association and similar entities, have asserted that REAL ID is an unfunded mandate.²²¹ It is very likely that as DHS enforcement efforts progress, states particularly opposed to REAL ID will likely engage in litigation seeking to challenge it as a violation of the Tenth Amendment. As for the claim that REAL ID constitutes an unfunded mandate, it is unclear how vulnerable REAL ID would be to any court action on that issue, but it needs to be recognized that implementation comes at considerable costs to states. The considerable expense of implementation efforts, and claims that the federal standards constitute an unfunded mandate, becomes a political rallying point that warrants attention from DHS.

As an initial matter, it is necessary to address what the Tenth Amendment prescribes, and what is commonly understood to be an unfunded mandate. The Tenth Amendment to the United States Constitution provides as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.²²²

The question for Tenth Amendment purposes is whether the federal government’s actions to set standards for the issuance of driver’s licenses and state identity documents constitutes sufficient interference with state powers by effectively commandeering state

221 National Governors Association, National Conference of State Legislatures, and American Association of Motor Vehicle Administrators, The REAL ID Act: National Impact Analysis,a September 2006.

222 U.S. Const. amend. X.

regulatory processes or functions.²²³ Alternatively, the tactic, embodied in both laws, of setting federal standards that the states must meet for the documents to be acceptable for federal purposes, as opposed to imposing direct prescriptions on the states, may sufficiently disentangle the federal government from state processes, such that the laws will survive a Tenth Amendment challenge—but it remains to be seen.

Tenth Amendment principles have particular applicability in the context of discussions surrounding legislation like REAL ID, and the concept of unfunded mandates. It is generally in relation to the impact of federal legislative and regulatory requirements that many argue impose unfunded mandates on states. An “unfunded mandate” according to one source is defined as the following.

A requirement set forth by a governing agency that does not provide any type of funding to facilitate the requirement. For example, “In order to comply with the unfunded mandate on security upgrades, the business will have to incur out-of-pocket expenses.²²⁴

In a sense, an unfunded mandate can be seen by those who see a growth in federal intrusions into state sovereignty as adding insult to injury because it is viewed as imposing significant costs on states in addition to intruding upon the states through requirements that they are powerless to resist. This argument is commonly raised by critics of REAL ID, and has been stressed by one of the more vocal organization critics, EPIC.

EPIC is among the principal opponents of REAL ID, and one that claims that REAL ID is an unfunded mandate on the states. EPIC issued a review of the proposed implementation of the REAL ID Act, in May 2008. In its May 2008 review of REAL ID, EPIC first took issue with the statement from DHS that REAL ID was a voluntary program and not mandatory.

223 Garcia, Lee, and Tatelman, Immigration, 2.

224 “What Is Unfunded Mandate? Definition and Meaning,” accessed December 16, 2013, http://www.businessdictionary.com/definition/unfunded-mandate.html.

The Department of Homeland Security has repeatedly stated that REAL ID is not mandatory; therefore, it is not an unfunded mandate. However, in EPIC’s May 2007 comments on the draft REAL ID regulations, we explained the reasons why REAL ID is not a “voluntary” program.²²⁵

EPIC’s argument that REAL ID imposes a mandate and is not voluntary stems not from any statutory or regulatory requirement for the states to comply, but rather from the pressure it claims is being applied to states and individuals. According to EPIC, states feel considerable pressure to implement REAL ID, particularly in the wake of DHS officials remarking that states that do not comply pose a risk to the nation. EPIC also points to the inconvenience faced by citizens in everyday transactions, such as air travel.²²⁶ In addition to the voluntariness aspect, EPIC also takes issue with the inadequacy of financial assistance provided by DHS, noting that DHS allocated $360 million to the states for implementation effort, an amount that, according to EPIC, pales in comparison to the estimated 9.6 billion estimate for implementation.²²⁷ EPIC is making two separate but related points. One is the voluntariness aspect, and the second criticism that seems applicable relates to the costs imposed on the states, regardless of whether REAL ID is a mandated program. These two points are addressed in turn.

It appears that at most, on the issue of pressure exerted by DHS, the strongest condemnation it can make of DHS efforts to persuade states is DHS’ statement that states may find noncompliance “an unattractive option” because of the inconvenience that citizens from noncompliant states would experience.²²⁸ EPIC’s assertion that that DHS’

expectation of “widespread” acceptance and the continued pressures and penalties on states cause it to remain convinced that the program is not voluntary.²²⁹

225 EPIC: Real ID Implementation Review, 4.

226 EPIC: Real ID Implementation Review.

227 Ibid., 21.

228 Ibid., 5.

229 Ibid.