Senate Bill Would Exempt REAL-ID From Due Process And Oversight
Senate Bill Would Exempt REAL-ID From Due Process And Oversight by Edward Hasbrouck for Activist Post
Rather than responding to our comments on the latest proposal by the Department of Homeland Security to require ID for airline travel, the DHS has quietly gone to Congress to try to get the law changed so that it doesn’t have to answer us, and to preclude potential litigation to challenge an ID requirement or defend people who try to fly without ID.
A bill introduced earlier this month in the Senate, and already approved in committee, would exempt the implementation and administration of the REAL-ID Act from normal administrative requirements for due process in rulemaking and oversight and transparency in demands by Federal agencies for information.
Included in S. 4133, both as introduced and as amended and reported by the committee, are provisions that would allow the Secretary of Homeland Security, at his or her “discretion”, to issue regulations and administer the REAL-ID Act without regard for the Paperwork Reduction Act (PRA) or the notice-and-comment requirements of the Administrative Procedure Act (APA).
S. 4133 , the “REAL ID Modernization Act”, was introduced by the chair of the Senate Homeland Security and Government Affairs Committee (HSGAC), and co-sponsored by the ranking minority member of that Committee. At a Senate HSGAC business meeting on July 22nd, S. 4133 was favorably reported to the floor with no discussion or opposition, by a voice vote en bloc with several other “uncontroversial” bills.
Most of the provisions of S. 4133 reflect the lobbying agendas of the travel industry and state governments. But the proposals to exempt REAL-ID Act implementation and administration from the PRA and the APA appeared in neither state government nor industry wish lists for REAL-ID Act “modernization”. Presumably, these exemption provisions came from behind-the-scenes lobbying of Senate HSGAC leaders by the DHS.
The APA requires public notice (through the Federal Register), an opportunity for the public to comment, and an obligation for the agency to consider and respond to those comments before new federal regulations binding on the public are put into effect. The PRA requires similar public notice and comment, and review and approval by the Office of Management and Budget, before any Federal agency can require members of the public to respond to any written or verbal “collection of information”. These are basic due process, transparency, and oversight requirements. This is what democracy looks like at the level of federal administrative procedure.