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Working Out the Differences
If the states' reaction to REAL ID is any indication, America's "laboratories of democracy" may be gearing up for a fight. When 33 states—and counting—begin to openly defy Capitol Hill, Congress must take note.

Seeing a storm on the horizon, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) is poised to push legislation repealing the 2005 REAL ID act. Not only has the post-9/11 legislation strained the already tenuous state-federal partnership, but it is also testing powerhouse organizations like the ACLU, which would happily cheer its quick demise.

For their part, state legislators fear that the public isn't even aware of the federal mandate. As North Carolina Speaker of the House Joe Hackney notes, "Our folks don't know anything about REAL ID…and they won't know anything about it until they try to get on an airplane or go into a federal office."

So what is it, exactly?

REAL ID, which requires all states to completely reissue driver's licenses by 2013, calls for 240 million license holders to provide proof of birth, address and Social Security number. These new identification cards will then be entered into a nationwide digital database, an aspect that has opponents worried that the cards could streamline identity theft on a grand scale. Attached to a 2005 Iraq War spending bill and relief fund to victims of the Asian tsunami, the plan carries a an estimated $14 billion price tag. To date, Congress has only appropriated $40 million.

But REAL ID isn't the only issue that has had state legislators clamoring to reassert their authority in the state-federal partnership.

Beyond REAL ID

Kansas Senate President Stephen Morris is concerned about how to address stipulations in the Medicaid program that put pressure on states to take care of the elderly although, he claims, the states are not given enough money to do so. "At some point there's going to be a sea change; the states just don't have the resources," he says.

Some analysts maintain the federal government has been under pressure from the general public to assert even greater authority in some policy areas. Pointing to new environmental regulations to acknowledge growing concerns about global warming, experts say Congress is having a difficult time distributing the necessary resources to ensure the states are able to follow through on new federal measures.

Dan Farber, Constitutional Law Professor at UC Berkeley, says, "The trouble is that the feds are facing conflicting pressure from the public. The public wants the federal government to take on more and more problems, such as education or homeland defense, yet the public does not want to cut other programs, pay more taxes, or have escalating deficits. Unfunded mandates are an irresistible way out of this dilemma for federal officials."

At Policy Today's roundtable discussion in late April, legislators and representatives from across the country sat down to discuss what has happened to the state-federal model; and to figure out why the disconnect seems to loom larger than ever before.

NCSL Executive Director Bill Pound pointed to the breakdown of a former system of "Washington-dominated federalism" through precedents set by the New Deal and Great Society programs. These federal programs eventually gave way to a new influence of Regan-era politics, he noted, whereby the balance shifted towards shared responsibilities; this then lead to the federal government outrunning its resources.

"The states then became more aggressive with respect to policy," Pound said. "I happen to believe the most innovation tends to take place at the state and local levels and then bubble up."

Farber points to one key characteristic of the federal government in recent times—polarization—which he says makes it difficult for the feds to institute policy innovation, placing more importance on the states. "Many of them may also have gridlock on particular issues, but there may be enough exceptions to allow new ideas to be tried," he says. "Once those ideas have been proven in a few states, they have a tendency to spread."

States take action

While Chairman Leahy consults with the Democratic-run Senate to undo the 2005 REAL ID act originally introduced by their Republican counterparts, the states are taking their own actions unilaterally.

Pietro Nivola, of the Brookings Institute, recently told that this issue is especially noteworthy in the states' outright defiance of the federal government. Although states have wrestled with mandates since President John Adams' tenure, he said, very few have outright defied lawmakers on the Hill. He then compared it to a 1798 movement by legislatures in Kentucky and Virginia to pass resolutions protesting laws restricting the rights of immigrants as the country prepared for war against France.

Massachusetts Senator Richard Moore suggests that with regard to REAL ID, a "real revolution" in the federal partnership could emerge. "Here you have the federal government taking over a responsibility that the states have always had, and at a significant cost to the states," he notes.

Farber says that if only a small number of states fail to comply with REAL ID, "their citizens will suffer considerable inconvenience. But if there are multiple failures, especially involving large and powerful states, the federal government will have to find some way to reach an accommodation with the states."

Structural strains

But the problem isn't limited to dollars and cents, and it isn't limited to REAL ID. As difficult mandates continue to roll out of Washington and into state houses across the country, real fissures in states' governing structures begin to emerge. "The feds pass so much authority to the administrative branches of government and ignore the legislative branches in the states," says Kansas House Speaker Melvin Neufeld. "Then we have to play catch-up to try to retain our separation of powers and constitutional duties in the states."