Nullify the Real ID Act

House Republicans seem to be confused about which side they’re on, again. Roughly one month after voting overwhelmingly in favor of extending certain unconstitutional provisions of the so-called Patriot Act, they are urging the Obama administration not to delay the implementation of the Real ID Act of 2005, which will otherwise take effect on May 11.

The Real ID Act, an unfunded federal mandate which requires all fifty states to issue federally compliant identification cards, was swiftly signed into law by President Bush after being passed with no debate. Proponents claim that it will make it easier to combat terrorism and crime, though when asked for specifics, they tend to fall back on nonsensical Bush-era neoconservative talking points.

Critics on both sides of the aisle point out, correctly, that Real ID will make it easier than ever before for identity thieves to obtain personal information, while foisting an utterly unnecessary financial burden onto states that are already strapped for cash. And, of course, government programs always evolve, so what will the next step be? As the U.S. regresses into the ideological darkness of statism, the very authoritarianism our heroic founders left behind, how could future administrations—worse than the current one, unimaginable as that seems—abuse and exploit a national identification card?

Fortunately, sixteen states have passed laws rejecting Real ID, while another eight have enacted resolutions expressing opposition to the mandate. It is interesting to note that this is not a red/blue issue; the states opposed to Real ID are all over the map, both politically and literally, from Maine to South Carolina to Illinois to Hawaii.

Not all states have reacted so wisely. Some, like Delaware, began issuing federally compliant identification cards without any local legislative authorization whatsoever, while adamantly (and dishonestly) denying that the move would lead to a national identification card.

It’s quite likely that Homeland Security Secretary Janet Napolitano, who has been a vocal opponent of Real ID in the past (though she wants to replace it with a similar law that would probably be even more frightening), will delay the implementation of the law.

However, Napolitano’s decision shouldn’t make a difference to the fifty states. With nearly half of them prepared to violate federal law by saying “no” to Real ID, there is no reason to assume that the implementation of the law—whether it takes place on May 11, or years from now—will affect anyone, provided that state governments simply exercise their constitutional right to nullify it.

Nullification, despite being suspiciously absent from most public school curriculums, has a long and honorable history in the U.S. It is the process by which one or more states invalidate an unconstitutional federal law, whether by blocking its enforcement, or simply ignoring it. An excellent example from the 19th century is the Fugitive Slave Act, which permitted slave-catchers to recapture escaped slaves, even in “free” states. A number of northern states nullified this unjust law, including Pennsylvania and Wisconsin. Their noble efforts were opposed by the Supreme Court, but the fact of the matter is that a handful of black-robed judges cannot really force a state government to do anything, and in this case, northern states acted appropriately, if illegally.

Suppose that, say, a quarter of the states refuse to comply with the Real ID Act. What will the Democrat-controlled federal government do? Withhold funding for other programs? Send in armed troops? Throw a temper tantrum—or be forced to admit that it’s not nearly as powerful as it likes to pretend?

We’ll have to wait and see.