‘Supremacy clause’ causes confusion over Real ID requirements

Missouri lawmakers emphasize, they want to get to the bottom of the state Revenue department’s new licensing procedures, where — they say — Missourians’ personal information is stored routinely and, perhaps, shared with the federal government.

Highway Patrol Superintendent Ron Replogle acknowledged in state Senate hearings last week that the state’s entire list of concealed-carry permit holders — a list required to be “closed” under state law, but also required to be part of the MULES (Missouri Uniform Law Enforcement) System — was shared at least twice with the federal Social Security Administration.

The Legislature’s leaders in both houses keep reminding officials from Gov. Jay Nixon’s administration, reporters and the public that releasing the information violates state laws.

But the U.S. Constitution says federal laws trump state laws.

The original, 1789 Constitution’s Article VI, Section 2 reads: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

So, what right do states have to challenge federal laws, like the 2005 “Real ID” law?

Those are questions being discussed and argued among lawmakers across the country — and the debate in Missouri takes on added meaning with lawmakers’ current battles with the state Revenue Department over the information it’s taking from state residents for driver’s and nondriver’s licenses, and for concealed weapons permits.

State Sen. Kurt Schaefer, R-Columbia, told reporters on March 26: “Keep in mind, the ‘Supremacy Clause’ says that federal law trumps state law when the federal government actually has a legal basis to occupy the field in which they’re regulating.

“So, the feds can’t just pass any law and say, ‘That’s a federal law — that trumps everything at the state level.’”

But, among the powers the federal Constitution gives Congress is the authority “to regulate Commerce with foreign Nations, and among the several States ...”

That includes interstate transportation like trucking, buses and airplanes.

And, as part of the response to the Sept. 11, 2001, terrorist attacks in New York City and Washington, D.C., Congress passed — and President George W. Bush signed into law — the “Real ID” Act.

The federal law required states to develop driver’s licenses and other personal identification cards to contain certain information, including: the person’s full legal name, date of birth, gender, address of principle residence, signature and digital photograph; driver’s license or identification card number; physical security features designed to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes; and a common machine-readable technology, with defined minimum data elements.

Missouri lawmakers in 2009 said Missouri wouldn’t comply with that federal law.

And, Schaefer noted last month, “About half the states passed laws, similar to Missouri’s, that said they weren’t going to comply.”

Last Dec. 20, the National Conference of State Legislatures (NCSL) reported the federal Department of Homeland Security issued a press release announcing that beginning Jan. 15, “those states that are not in compliance with the REAL ID standards will receive a temporary deferment of enforcement, of at least six months, during which Federal agencies will continue to accept state-issued drivers licenses and identification cards from those states for boarding commercial aircraft and other official purposes.”

House Speaker Tim Jones, R-Eureka, told reporters last week the Real ID law had an “opt-in, opt-out provision. Missourians have, obviously, opted out.”

However, the law — as shown on the NCSL website, www.ncsl.org/issues-research/transport/real-id-act-of-2005.aspx — does not appear to be optional.

The law says: “IN GENERAL — Beginning 3 years after the date of the enactment of this division, a Federal agency may not accept, for any official purpose, a driver’s license or identification card issued by a State to any person unless the State is meeting the requirements of this section.

“(2) STATE CERTIFICATIONS — The Secretary (of Homeland Security) shall determine whether a State is meeting the requirements of this section based on certifications made by the State to the Secretary. Such certifications shall be made at such times and in such manner as the Secretary, in consultation with the Secretary of Transportation, may prescribe by regulation.”

At a minimum, the federal Homeland Security department threatens to keep Americans from boarding airplanes flying from one state to another, if the traveler comes from a state that hasn’t complied with the federal law.

U.S. Rep. Blaine Luetkemeyer, R-St. Elizabeth, last Thursday asked Homeland Security Director Janet Napolitano how Missouri has complied with the federal law.

“I greatly respect DHS’s mission to ensure that our homeland is safe, secure, and resilient against terrorism and other hazards,” Luetkemeyer wrote in his letter to Napolitano. “However, I take significant objection to the notion that all individual privacy protections must be abandoned or ignored in order to achieve this goal.”

Luetkemeyer is to discuss any responses he’s received at a news conference Monday morning.

The federal authority to require compliance with the Real ID law has not been tested in court, yet.


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