Imagine that you awake in the middle of the night to the sound of smoke detectors blaring. You leap out of bed and, as the smoke thickens, rush to get yourself and your family members out the door. Your family stands in the street, with nothing but the pajamas on their backs, as all of your worldly possessions are consumed by the inferno.
Not to worry! You have insurance; your files, video/music collection, and family photos are safely stored in the cloud; the vast majority of your wealth is safely invested with financial institutions. Everything in that house can be easily replaced. Except your identity.
Not your actual identity as a person but your ID. All of the government documents that you use to prove that you are who you say you are. Driver’s licenses, birth certificates, Social Security cards, passports, professional licenses, etc., etc., etc. They may be nothing more than scraps of paper or plastic, but they are of vital importance in the modern world.
You start your online research into how to get all of your ID documents back by cruising around the web sites for the Department of Motor Vehicles, the State Department, the Social Security Administrations, and the county records office where you were born. You soon come to a sickening realization: the government will not issue you an identification document unless you show them at least one (usually multiple) form of government issued photo identification. You are now stuck in a horrifying bureaucratic loop, where each agency insists that you must first acquire impossible to acquire documents from other agencies before they will provide you with their own impossible to acquire document.
And so, months after you have used your insurance money to replace all of your possessions you may still find yourself in an endless battle with various government agencies to reacquire all of your government documents. Yet if you are a blessed enough to have an insured home in the suburbs then we can probably assume a number of things about you: you are probably already employed and making a good living; you probably have a decent enough education and command of the English language; you can probably call upon long-time friends and family to vouch for your identity or assist you in procuring documents; if worst comes to worst, you can probably afford to hire a professional resolve the matter for you.
The plight of the IDless (I would prefer to call them “undocumented”, but apparently that label is taken) it is both much worse and much more common for the homeless. Among the many drawbacks of homelessness is the lack of a secure place to store your possessions, including ID and other important documents. Thus, it is quite common to hear from the homeless that all of their identifying documents were stolen or lost during the course of their time on the streets. Another common story is that of the ex-convict, who is released into society without any idea what happened to his documents while he was locked away.
And this lack of ID can make it almost impossible to work your way out of homelessness. Most importantly, since the passage of the Immigration Reform and Control Act of 1986 it is illegal to employ someone who cannot present government ID. 8 U.S.C. § 1324a(b). Next time you start a new job just try telling your employer that you cannot complete your I-9 form because you can’t show them ID. How long do you think this employer will be willing to risk the wrath of the Feds just for you? Even if you find an employer who is willing to skirt federal law, there is still the practical reality that many entry level jobs require a driver’s license, either as a formal requirement or as a practical necessity to get to the job. Even if you overcome these hurtles, you will still have trouble getting paid, since most financial institutions will not cash a paycheck without any photo ID.
The list of things you can’t do without government ID is ever growing. Apart from not being able to drive, you are also unable to fly, unable to ride Amtrak, and even unable to buy a Greyhound bus ticket. You would think that a Post Office box would be a great thing for homeless individuals who generally lack a fixed and secure location to receive important mail such as bank statements, bills, government notices, and even the very identity documents that government agencies mail them. But no. The Post Office requires two forms of ID in order to rent a PO Box. After being pressured by the Feds, both FedEx and UPS have instituted similar ID requirements.
It is increasingly common for government buildings to require all individuals to present ID before they may enter, effectively preventing the IDless from obtaining government services, petitioning government officials, or attending public events. For instance, while the web site for the federal court system insists that “[o]ur Constitution and court tradition give citizens right of access to court proceedings,” you will probably have to present government ID to pass through security. Based on my highly scientific study (Googling for 5 minutes) the federal district courts in Seattle, Pittsburgh, DC, and Los Angeles all require ID. For what its worth, neither the US. District Court for the Southern District of New York nor the U.S. Marshals Service, which provides security for all federal courts, have any ID requirement mentioned on their web sites, but that doesn’t mean there isn’t one on the ground. Some cities may even go so far as to demand ID before issuing a permit for a protest or rally.
The list goes on and on. Getting married – ID required. Buying a gun or getting concealed carry permit – ID required. Alcohol – ID required. Tobacco – ID required. Legal weed – ID required. Cough syrup – ID required. Fishing or hunting permit – ID required. Applying for various welfare programs – ID required. And these are just some of the activities that the government restricts for the IDless. There are countless other examples of the private sector restricting services to those without an ID.
There are numerous commentators out there from across the political spectrum who have spoken out in opposition to these ID requirements for philosophical reasons: that free citizens should not have to rely upon government papers to live their lives as they see fit. While I have a good deal of sympathy with these arguments, I am writing for a different purpose: to show how practically difficult it can be to comply with these ID requirements unless you already have ID.
I first became aware of the severity of the problem when I began volunteering at legal aid clinic that provides pro bono legal assistance to homeless and low income individuals in Seattle. I currently have several clients that I am helping to dig their way out of the no-ID abyss. Their stories are generally the same: at some point while living on the street their backpack, which contained all their documents, was stolen; or they did a stint in prison and have no idea what happened to all their documents while they were in the slammer; they have nothing but their word to prove their identity.
Since I am helping people in Seattle I am most familiar with the ID requirements of the Washington Department of Licensing, but most states have a similar process for obtaining a driver’s license or ID card. The State Department’s requirements for obtaining a passport are similar. If you can’t produce a valid, government issued photo ID then you will have to provide numerous “lesser” documents to establish your identity: birth certificates; school IDs; high school transcripts; yearbook photos; marriage certificates; divorce decrees; military discharge papers; Selective Service cards; driving records from other states; deeds; medical records; prison records; letters from government agencies; utility bills; pay stubs; etc.
Even obtaining these lesser documents can prove to be difficult for the IDless. Birth certificates, for instance, generally require a photo ID to order. There are some work arounds in some states, but often they are impractical for many homeless individuals. Some let an immediate family member who has ID order a birth certificate for you, but many homeless people do not have any living relative or are estranged from their family. (Let’s be honest, if they had strong family connections to call upon for help they probably wouldn’t be living on the streets). Other states will accept a notarized statement by the applicant swearing that you are who you say you are, but then again, most states also require notaries to check photo ID before notarizing any document, so that’s not particularly helpful. Or you can get a lawyer to order it for you, because somehow me submitting a photocopy of my Bar card makes me more trustworthy than you. Of course, it’s not like most homeless people can afford a lawyer anyways, so unless they can find a legal aid clinic that assists with obtaining ID this is of no help.
Most lesser documents require a fee of some sort, and while the price is generally low by suburbanite standards (in the $5-30 range), if you have to order several of these documents the price can really add up for a homeless person. If you want to have a fun conversation with a client try telling a homeless high school drop-out that he must fork over money to order his high school transcript or telling a homeless woman who has been divorced for 30 years that she has to buy a copy of her marriage certificate. Good times.
Plus, there is the time factor. First you have to devote a good deal of time figure out what documents might be out there, what random government office you have to contact to obtain the documents, and then filling out whatever stupid form the random government office almost certainly requires you to fill out. Then you just get to sit and wait. Days? Weeks? Months? Who knows when the faceless bureaucrat will finally get around to printing out your document, stamping it, and mailing it to you. Assuming that they don’t lose your request or deny it for some petty reason. Don’t you think it would be a blast to play the waiting game with your new employer breathing down your neck threatening to fire you if you don’t show ID for your I-9. How many times can you say “I swear boss, I swear! My birth certificate should be coming any day now,” before they decide to can you? Or imagine what a blast it must be to sit around with your debts mounting while the paycheck in your hand is worthless because you can’t cash it.
Women have it worse since many have changed their names one or more times, so they may have to collect a chain of marriage certificates and divorce decrees to show that they are indeed the same person as the baby on that birth certificate. Plus, they don’t register for the draft, and it is remarkably easy to obtain a copy of a draft card from the Selective Service System, which counts as a lesser document for most agencies.
And this is all assuming that you are lucky enough to have been born in the United States and have a birth certificate recorded in a county record office. If you were born to U.S. citizens overseas then you have to obtain a new Consular Report of Birth Abroad from the State Department, which will cost you $50 and take between 4-8 weeks to process. Immigrants are really screwed because they have to deal with U.S. Citizenship and Immigration Services, a government agency that is renown for being as warm and cuddly as a cactus (actually I take that back, I like cacti, USCIS is more like poison oak, no rational person would ever want to come into contact with it). I couldn’t tell you what the process is for replacing a green card or visa, but if a citizen wants to obtain a replacement Certificate of Citizenship or Certificate of Naturalization (of course a Certificate of Citizenship is different from a Certificate of Naturalization, what idiot doesn’t know that, but you use the same N-565 form to order both, but make sure you check the right box on the form otherwise you might get denied or delayed) that will cost you $555 and you will be lucky to see the certificate within 6 months. (To be fair, USCIS does waive the fee if you can prove you are indigent).
If you have managed to amass the required number of lesser documents, you will still find yourself at the mercy of some government employee who gets to decide if the documents you found are good enough. While different agencies tell you to bring in a certain number of these documents (Washington DOL says four, the State Department says 2) the reality is that you need to bring in as many as possible. I recently sent a homeless man to the DOL to get an ID card with eight different documents and he was still rejected.
A large part of the problem, both at the agencies that issue ID and at the agencies that are demanding to see ID, is that the ultimate decision is left up to the discretion of low-level government employees who likely have little to no training or education regarding the law or the agencies regulations on ID. For instance under Washington Administrative Code § 308-104-040(3), if the DOL decides that an individual has not presented sufficient identifying documents to get a driver’s license or ID card there is an appeal process, first to the “senior technician for the region,” then to “headquarters staff.” But when my client with eight identity documents was rejected and asked for information about how to appeal, the DOL staff told him there was no appeal. The DOL web site is equally lacking any information on the appeal process. When I called the DOL’s support line they had no idea about any appeal process, and when I told the operator that the Code required an appeal he laughed and said, “I’m a peon and I don’t know anything about the Code.” Neither did his supervisor.
So while you can go ahead and write some nice process on paper for how the IDless can obtain ID, in reality the final outcome will probably rest upon the arbitrary whim of some low-level government drone. I can think up potential ways to sue DOL in order to force them to abide by their own regulations: seeking a writ of mandamus; demanding judicial review under the state Administrative Procedures Act; a federal suit under 42 U.S.C. § 1983 linking the denial of a state ID to the denial of federal constitutional rights such as the right to travel, attend public court hearings, or to keep and bear arms to name a few. But the cost of litigating such a case would be far beyond the reach of most individuals, much less the homeless, and most people seeking ID can’t afford to wait years for the case to mosey its way through the courts.
So instead I just give them the most unsatisfying advice imaginable: track down even more lesser documents and try again; or waste another afternoon sitting at the DOL and hope that a different bureaucrat reviews your documents and finds them sufficient; or just try a different agency, maybe the bureaucrat at the State Department will give you a passport when the bureaucrat the DOL won’t give you an ID (DOL may have rejected my client’s eight documents, but Social Security thought it was good enough to replace his card).
Similarly, the people who are checking ID before granting you basic government services are all poorly trained underlings. I would like to imagine that every judge within the federal judiciary would acknowledge that a homeless individual without any ID has a right to enter a public court and observe justice being done. Indeed, it is probably written in some employee handbook somewhere that an exception must be made for an otherwise safe, but IDless, individual who wishes to attend a court hearing. Somehow, I doubt that the guard standing at the metal detector knows or has been trained about the centuries old fundamental right to attend public court hearings. He just knows that he was told to check ID. And while a lawyer wearing a suit might be able to talk his way past a court guard by rambling on about things like “the Star Chamber,” “due process,” and “the Sixth Amendment,” if a homeless man tried the same things he would likely be thrown out on his butt, if not arrested.
In typical government fashion, one hand has absolutely no idea what the other is doing. Ever since 9/11 and the passage of the REAL ID Act in 2005 the Feds have been pressuring the states to tighten up their standards for driver’s licenses and ID cards. At the same time the standards for the one ID that the Feds actually issue, a passport, have remain less stringent than the standards set for states in the REAL ID Act. And while the Department of Homeland Security is constantly chiding states for being too lax with IDs, the federal Bureau of Prisons has been begging states to accept BOP ID cards issued to inmates upon release as valid ID for obtaining a state driver’s license or ID card.
I suppose that the IDless might take some solace if these stringent ID requirements actually did some good for society, but there is little reason to believe that they are particularly effective. Does anyone actually believe that stringent ID requirements has had any significant impact on teen drinking? Will a terrorist who is planning a suicide attack on a courthouse just go home and rethink his worldview after he is rebuffed for lack of ID? Will identity thieves now just go and find honest work? Have all the illegal immigrants self-deported since it is unlawful for them to work in the U.S.?
The reality is that anyone who has a basic understanding of how to obtain ID and even a limited photo editing ability (no need for something fancy like Photoshop, MS Paint will do) can easily obtain, through fraud or forgery, most of the lesser identity documents needed to get a government issued photo ID. To begin with, many of a person’s lesser identifying documents can be obtained by anyone, particularly if they know something about the person like their birthday or Social Security Number. Many of the lesser documents, such as marriage certificates, divorce decrees, and deeds are public documents that the government cannot legally keep private. Even documents that are not technically public records can still be obtained by most anyone who asks (If you want to find out about how I barely passed Art class in high school just mail the school registrar and request my transcript).
Plus, most of these documents are simple, short, consist only of text, and sample images are readily available online (sometimes you can even find a blank, fillable, pdf you can download). Most could easily be edited or created from whole cloth in Paint or Word. Generally, the only security feature is that the document is stamped or embossed with the organization’s seal, but anyone can order a custom stamp or embosser online. When I look at my own official documents, such as my birth certificate or my marriage certificate, the embossed seal is so faint and illegible that it could be the logo of a bowling league for all I know. Perhaps these simple forgeries would be detectable by a detective trained in forgery techniques, but the guy behind the counter at DOL or Social Security probably isn’t going to know the difference.
The one thing that ID requirements are good at doing is making the government look like it is doing something to address a problem. Oh look, the TSA is checking everyone’s ID before they get on the airplane, that makes me feel safer, who cares that they almost always fail to detect actual threats! It doesn’t matter that “[i]n 2003, the average age of first use of alcohol was about 14, compared to about 17 1/2 in 1965,” because it is way harder to get a fake ID today than it was in 1965! So, for the sake of making the government look like it is doing something useful we create laws that make life incredibly difficult for law-abiding citizens, while those intent on breaking the law are only slightly inconvenienced.
Unfortunately, almost the entire political debate around ID laws is focused exclusively on fights over voter ID laws. Republicans are convinced that the only reason they ever lose elections is because Democrats and illegal immigrants engage in massive voter fraud. Democrats are convinced that the only reason they ever lose elections is because Republicans engage in massive voter suppression of minorities, the poor, and the elderly. Thus, both side act as though the presence or absence of voter ID laws is the only thing standing between the U.S. and a totalitarian nightmare. Both sides are so focused on their own petty desire for power that they can’t see the far larger problem with our current tangle of ID laws.
Republicans are so obsessed with the (largely irrelevant) problem of voter fraud that they can’t see that the problem of obtaining ID fits well within the Republican narrative about government: a bunch of faceless bureaucrats have created a horrifying web of regulations that can destroy a man’s livelihood as he struggles in vain to obtain worthless scraps of paper from the government. Who would ever entrust the government to run something complex like national health care when they turn something as simple as photo ID into a soul-crushing abomination?
President Trump recently took a lot of flak from the left for claiming that “[i]f you buy, you know, a box of cereal, if you do anything,” you have to show ID. The right-leaning Washington Examiner tried to make the same point with this article. They are both making a perfectly valid point: that it is basically impossible to live a normal life in 21st century America without government issued photo ID. Then they go and insist that this makes it ok to create one more thing that the IDless can’t do. So, so close, and yet so very far away.
The Democrats, on the other hand, proudly display how woke they are by removing anything even remotely resembling a voter ID requirement. After all, the IDless are disproportionately poor, minorities, and the elderly, so if you have always had one (if not more) valid government photo IDs then you need to check your privilege. Sadly, Democrats are only woke enough to care about getting the IDless to the polls to pull the lever for anyone with a D next to their name.
I know that it is too much to expect Democrats to care about the right of the IDless to keep and bear arms, but you think they might care about the fact that Congress has made it a crime to employ them. After all, the Democrats are well aware of how the I-9 ID requirement can destroy someone’s life through unemployment. In his Deferred Action for Childhood Arrivals (DACA) executive order, President Obama, without authorization from Congress, decided to ignore the requirements of the Immigration Reform and Control Act of 1986 and issued work authorization permits to illegal immigrants who arrived in the U.S. as children, so that employers could complete their I-9 forms and lawfully employ them. If Obama was willing to unilaterally ignore an act of Congress to help illegal immigrants get a job then surely he would do as much, if not more, for U.S. citizens who are unable to show ID for their I-9s, right?
Nope. Apparently, the Democrats have nothing to gain politically by helping the IDless do anything other than vote. Once they have cast their ballot they have served their purpose and can be cast aside. Take the progressives that dominate the Washington State Legislature. Registering to vote and getting a voter registration card in Washington is the easiest thing in the world. I registered to vote and cast my ballot back in November without ever having to leave my house or see a human being. There certainly was no ID check. Yet while many states, as well as the State Department, will accept a state voter registration card as a lesser document for a driver’s license or passport, the Washington Department of Licensing will not accept a Washington Voter Registration Card. They know it isn’t worth the paper it is printed on.
Ask someone who lacks an ID what is more important to them: the ability to vote or the ability to be lawfully employed? Voting or getting married? Casting a ballot or driving your kids to school? Indeed, if I met someone who would rather have a voter registration card than a photo ID I would suggest that they just might have their priorities horribly mixed up. Yet the Democrats will fight tooth and nail to get you’re the former but will not lift a finger to help you obtain the latter.
And people wonder why I can’t stand the government or either political party. I hate to be that guy who quotes Shakespeare, but Mercutio said it best: “A plague o’ both your houses!”