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U.S. Supreme Court: Justices might like national ID card

By MICHAEL KIRKLAND   |   May 9, 2010 at 3:49 AM
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WASHINGTON, Calif., May 9 (UPI) -- Americans are facing the prospect, some say the specter, of a national ID card. At least one civil liberties advocate warns the proposed card would bring government "into the very center of our lives."

The card -- part of a much larger Democratic proposal in Congress for immigration reform revealed last month -- would be "biometric." It could carry an individual's fingerprints and facial and iris scans like the British national identification card. In face-to-face transactions, such as an employment interview, it would prove you are you.

Everyone would have to produce the card to get a job, or keep a job.

If the larger proposal is approved by Congress, by no means a done deal, any constitutional challenge to a purportedly intrusive national ID card would depend on how far the U.S. Supreme Court would allow the national government to "burden" an individual to achieve a legitimate government purpose.

One obvious and legitimate government purpose would be preventing identity fraud by illegal immigrants and others. A universal ID card even has national security implications. When U.S. Attorney General John Ashcroft unleashed the FBI on illegal immigrants after the Sept. 11, 2001, terror attacks, agents found thriving underground operations producing fraudulent identity documents.

So, how far would the justices let the government go?

Judging by the high court's most recent actions -- pretty damn far.

Before going into Supreme Court precedent, it might be useful to describe what the new cards would be.

On a five-year timetable the biometric cards would replace Social Security cards and would be used to prove eligibility for employment. Card scanners would be issued to all U.S. employers. The cards would at least have the capability of being linked to a central data system.

Like all controversial government programs, the proposed national ID card has an innocuous name: When Senate Democratic leaders unveiled the new program last month they called it Biometric Enrollment, Locally Stored Information and Electronic Verification of Employment -- or "Believe," for short.

In some ways, the Believe system would be like the old one. The biometric card legally could only be used to verify employment eligibility, much like the current Social Security cards, and U.S. corporations already are required to keep the Social Security numbers of employees on record.

The difference would be in the biometric information and the universality of the employment requirement. However, the opportunities for abuse by unscrupulous government employees are obvious.

The proposal rang alarm bells at the American Civil Liberties Union in Washington. While criticizing several aspects of proposed immigration reform, the group is concentrating its criticism on the ID cards.

"If the biometric national ID card provision of the draft bill becomes law, every worker in America would have to be fingerprinted and a new federal bureaucracy -- one that could cost hundreds of billions of dollars -- would have to be created to issue cards," the organization said in a statement. "The ACLU strongly opposes the inclusion of a biometric national ID in this or any comprehensive immigration reform bill and urges senators to reject such an ID card."

In his own statement, Christopher Calabrese, ACLU legislative counsel, said: "Creating a biometric national ID will not only be astronomically expensive, it will usher government into the very center of our lives. Every worker in America will need a government permission slip in order to work. And all of this will come with a new federal bureaucracy -- one that combines the worst elements of the (Department of Motor Vehicles) and the (U.S. Transportation Security Administration). America's broken immigration system needs real, workable reform, but it cannot come at the expense of privacy and individual freedoms."

Unusual support for the ID card proposal comes from Kevin Drum, writing online for Mother Jones magazine.

Drum pointed out Democratic congressional leaders "go to great lengths to say that it is not a national ID card, and make it 'unlawful for any person, corporation; organization local, state, or federal law enforcement officer; local or state government; or any other entity to require or even ask an individual cardholder to produce their Social Security card for any purpose other than electronic verification of employment eligibility and verification of identity for Social Security Administration purposes.'

"But it's still a biometric national ID card. ... Essentially, if you want to participate in the American economy, you need this card."

Still, Drum said: "I'm in favor. It's not as if these things are security panaceas or anything, but they'd be pretty useful for things like reducing employment fraud or voter fraud. ... Every time this comes up I hear lots of vague but alarming talk about police states and the end of liberty, but nothing concrete about how this would really change things much ... As for making it easier for the federal government to track us, please. They already have all the tools they need to track us. It's called a Social Security number. A non-fakable Social Security number would be an improvement, not a further infringement on our liberty."

So what would happen if the national ID card proposal becomes U.S. law, it faces a constitutional challenge as an invasion of the constitutional right to privacy and the Supreme Court agrees to hear the dispute?

A case with many parallels is 2008's Crawford vs. Marion County Election Board. In that case, the state of Indiana enacted a law requiring citizens voting in person to present government-issued photo identification, such as a driver's license, at the polls.

A federal judge said the evidence in the case did not support an attack on the law, and a U.S. appeals court ruled the "burden" placed on voters was offset by the prospect of reducing fraud.

The Supreme Court also ruled for the state 6-3, though the ruling came in two opinions. Each opinion was supported by three justices.

Liberal Justice John Paul Stevens, who retires at the end of the current term, announced the judgment in favor of the law and wrote one of the majority opinions. He was joined by conservative Chief Justice John Roberts and moderate conservative Justice Anthony Kennedy.

Stevens dismissed Democratic claims that the law was enacted by majority Republicans in the Legislature to keep poor voters, those least likely to have a driver's license or a passport, from voting.

"If a non-discriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators," Stevens wrote. "The state interests identified as justifications for (the law) are both neutral and sufficiently strong to require us to reject petitioners' facial attack on the statute. The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting 'the integrity and reliability of the electoral process.'"

In an opinion joined by fellow conservative Justices Clarence Thomas and Samuel Alito, Justice Antonin Scalia helped form the six-justice majority, but had different reasons for joining the majority.

"The universally applicable requirements of Indiana's voter-identification law are eminently reasonable," Scalia wrote. "The burden of acquiring, possessing and showing a free photo identification is simply not severe, because (citing precedent) it does not 'even represent a significant increase over the usual burdens of voting.' ... And the state's interests ... are sufficient to sustain that minimal burden. That should end the matter."

Justice David Souter, now retired, dissented in an opinion joined by fellow liberal Justice Ruth Bader Ginsburg. Liberal Justice Stephen Breyer dissented separately, but Souter's criticism was harsher.

"Indiana's 'Voter ID Law' threatens to impose non-trivial burdens on the voting right of tens of thousands of the state's citizens ... and a significant percentage of those individuals are likely to be deterred from voting," Souter wrote. "The statute is unconstitutional under the balancing standard of (1992's Burdick vs. Takushi): A state may not burden the right to vote merely by invoking abstract interests, be they legitimate ... or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed."

Given the court's ruling in Crawford, the chances of success in a legal challenge to a national ID card are slim.

However, the political prospects offer more hope for opponents. The blogosphere is alive with speculation the Democrats don't really want to enact the national ID card, that they really want to use the proposal as a cat's paw to put Republicans in a bind, though there is no evidence that they aren't sincere.

But Senate Republicans are reacting to the proposal with suspicion. Even Mother Jones's Drum says, "There's not much chance of this proposal getting anywhere."

The difficulty in immigration reform is demonstrated by the REAL ID Act, enacted by a Republicans in Congress in 2005 and signed into law by President George W. Bush. Many called it a GOP attempt to establish a national ID card.

The act was designed to toughen state standards for issuing driver's licenses and other ID documents, and tighten the rules for temporary worker visas and asylum, among other things.

The problem -- the states are ignoring it. All 50 states asked for extensions of the deadline to comply, and 25 states have said they do not plan to participate in REAL ID, given the Obama administration's opposition.

In fact, the Las Vegas Review-Journal reported last week that Nevada will stop issuing driver's licenses that meet the REAL ID standards. A 120-day period allowing the license standards, ordered by the governor, has lapsed because the Legislature has so far refused to make it permanent, faced with opposition by conservative groups and the ACLU.

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