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It is illegal for the US government to create a mandatory national identity system or coerce the States into creating one. The limits of this have been pretty t

It is illegal for the US government to create a mandatory national identity system or coerce the States into creating one. The limits of this have been pretty thoroughly tested in the US Supreme Court. Every time things like this come up, everyone asks why don't we just thing that looks like a national identity system to fix the issue, as if that never occurred to anyone in Congress. This is why: it violates the Constitution. Short of amending the Constitution, which seems highly unlikely, the US will never have a national identity system like European countries.

volta83 5y ago
> It is illegal for the US government to create a mandatory national identity system The system can be voluntary. If you don't need an SSN today, you wouldn't need to use that system. If some bank or health care provider only accepts such a system, just pick another one, or create your own bank / health care provider.
- smsm42 5y ago
  You can not create a bank that does not verify identity according to a myriad of KYC regulations. You'd be heavily fined and most likely jailed if you do. Not sure about healthcare providers, probably if you're something like a massage therapist, there are no such requirements, but for a larger one there are probably regulations too.
  - InitialLastName 5y ago
    I suspect that for healthcare providers, the ID requirement is driven more by insurance fraud prevention (including Medicare/Medicaid); i.e. the insurers require the providers to perform due diligence to ensure that the patient being treated is the patient who is covered. I don't know of any examples, but perhaps a provider who did not take insurance would be able to avoid the requirement.
  - volta83 5y ago
    So how do banks verify identity in the US ?
    - smsm42 5y ago
      Usually they rely on government documents (driver licenses, passports, such kind of thing). Online banking has been a bit more lax but started having more KYC requirements recently. For an American though it's usually boils down to asking for SSN and driver license.
Buttons840 5y ago
Things might magically change if we ever manage to shift the legal and financial burden of "identity theft" to the banks who made the actual mistake, and credit agencies who illegally spread false information about people.
AbjectFailure 5y ago
What are you referring to? I wasn’t aware of any SCOTUS ruling re: national ID, and after a brief search just now I still can’t find any relevant precedent.
adzm 5y ago
Things like the Real ID Act seem to be as close as we can get without constitutional changes. Something like the above could potentially be implemented like that, but still would not be as widespread as an SSN.
- jandrewrogers 5y ago
  The Real ID Act has not been tested in court yet because it has not gone into effect, having been delayed a decade now. As soon as it goes into effect, lawsuits will immediately drop on several grounds. Furthermore, many States have declined to implement the part of the Act that requires them to share their identity databases with the Federal government, only complying with the "identity standards" part. Prior Supreme Court cases have ruled that the Federal government cannot coerce the States, e.g. via taxation or regulatory authority, to do something for the Federal government that the Federal government is prohibited from doing itself. Without the voluntary compliance of the States, which is like herding cats, with respect to creating a national identity database, the net effect of Real ID will basically be more standardized State IDs.
  - brewdad 5y ago
    Once again, citation please. You seem very sure of these Supreme Court decisions that appear to have slipped past the rest of us. Not saying you are wrong, with the firehose of info these days it's easy to miss things, even really important things.
    - jandrewrogers 5y ago
      To be clear, it isn't that a national identity database doesn't exist, they just can't force you to have a national identity token (that is a power divested to the States). Several legislative attempts have been made to link that database to some other token that is de facto mandatory even if they don't control it, like (currently) State ID. The challenge is, then, that they can't deprive citizens of rights for not having a token over which the Federal government has no control. The States have not been cooperative in this regard across the political spectrum, albeit for different reasons. So at the national level we either have optional ID tokens, like passports, or mandatory IDs that are not tokens, like SSN. There isn't one court case that informs the boundaries of the Federal government and ID, and how the government may facilitate the linking of an existing identity token to their database, it is diffused across many. The policy and regulatory practice in the Federal government threads a convoluted path through this precedent, with myriad loopholes and workarounds, and exploiting gray areas that have not been adjudicated. I've worked in this environment, which is the only reason I know about it. Every time they create a database on US citizens, they must articulate the title authority that both allows that database to exist and to be used (use and existence are, somewhat dubiously, deemed separate authorities which notionally allows them to collect data if they don't look at it -- this reasoning is not well-tested). In practice, the US government outsources identity stuff to companies like Lexis-Nexis, which rely on duck-typing to determine identity since this doesn't require the person being identified to carry a token. Just about everyone carries an ensemble of tokens that are sufficient for identity purposes if you have fewer database building prohibitions than the US government.
lostcolony 5y ago
Citation needed. "It's against the constitution" - where? Cite an article, quote a paragraph, something. You say the Supreme Court has decided this; fine, quote a court case. I'm not saying you're wrong, but I have no idea what you're talking about. We have plenty of de facto ID systems. But I'd argue they aren't mandatory because -there is no political will to make them mandatory-. What is achieved by doing so? Hell, the same political party that would object most vociferously to making them mandatory (because of religious reasons and cost to the taxpayer) is also the one pushing for laws to require issued IDs to vote, a right that -is- guaranteed in the constitution.
- casefields 5y ago
  Voting is not a constitutional right. Voting Rights Act is statutory like most of our laws.
  - dragonwriter 5y ago
    > Voting is not a constitutional right. Yes it is. > Voting Rights Act is statutory like most of our laws. Constitutional rights are often enforced by legislation; Amendments articulating rights often explicitly authorize this. See, with regard to voting rights, the 15th, 19th, and 26th Amendments. (EDIT: also, the 14th Amendment [see Sec. 2 and 5], and, as noted in a sibling comment, the 24th Amendment. Also the 17th Amendment, though that doesn’t have a Congressional enforcement clause. Voting rights are the single most common subject of Constitutional amendments.)
  - azernik 5y ago
    15th Amendment: Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. The 19th Amendment has identical language for "on account of sex", the 24th Amendment has "by reason of failure to pay a poll tax or any other tax", the 26th Amendment has "on account of age" for 18 years and older. Like many other things in the Constitution, the constitutional text defines the general principle and the power of the federal government to enforce it, and normal legislation establishes the actual enforcement mechanisms.
renewiltord 5y ago
Well, we could just make it just as mandatory as the social security system. And since the SSN is constitutional, so can this private/public pair system.
iknowstuff 5y ago
Thanks for bringing that up. Denmark, an EU member state, does not have ID cards, so it's not exactly mandatory over there. Seems weird that a SSN is not considered a national identity system? What if the federal government sunset SSNs after a bunch of big states implemented an equivalent of EIDAS on their own volition?
- pionar 5y ago
  It's basically because SSNs were not supposed to be used for that purpose, they were only supposed to be for the SSA to track people, like an account number. In fact, the paper cards used to say "NOT FOR IDENTIFICATION" on them. I forget when that was removed. The military started using them for ID in the 60s, then the IRS started using them in the 70s, and it's just kind of morphed into an ID number because "everyone has one".
dragonwriter 5y ago
> It is illegal for the US government to create a mandatory national identity system or coerce the States into creating one. The limits of this have been pretty thoroughly tested in the US Supreme Court. No, they haven't. There are people who have speculated that it is illegal since the idea started being discussed (serious discussions are actually fairly new, mostly a burst in the late-1990s and another one shortly after 9/11, though speculative strawman negative arguments go back a bit further, at least to discussions around HIPAA in the mid-1990s.) Those speculations have extrapolated from cases that are quite distant from a national ID (e.g., weirdly, critics of the idea have suggested a national ID would violate the protection of the eight to anonymous political speech found in the first amendment under McIntyre v. Ohio Elections Commission (1995), which aside from the WTF of what a national ID even has to do with that right, is clearly false because the First Amendment applies to the states under the 14th Amendment, so if somehow the creation of a federal ID would violate a First Amendment right, the creation of a state ID would equally violate the application of that right under the 14th. In fact, we have federal (directly issued or state-issued under federal regulations) ID cards required for certain federally regulated purposes, notably: (1) Passports (or, for certain cases, state-issued under federal rules Enhanced Driver's Licenses) for border crossing; (2) Passports, state-issued ID’s meeting federal Real ID standards, or certain other federal or federally-regulated IDs for air travel and access to federal facilities. There are usage or production requirements that government might adopt for ID that violate Constitutional protections that have been firmly articulated by the courts, but those generally apply to state and federal ID equally.
sneak 5y ago
Real ID is a backdoor national ID, just administrated piecemeal by the states. The feds have all of the secure flight data and all of the Real ID license/state ID card data, linked to SSN.
- jandrewrogers 5y ago
  Yes, this was the intent. However, many States have refused to implement the requirement to give the Feds access to their databases, even if though the ID conforms to standards, and the Feds don't have a lot of leverage to force compliance.
lhorie 5y ago
> everyone asks why don't we just thing that looks like a national identity system Aren't passports national/federal identity systems?
- snowwrestler 5y ago
  But not mandatory. You don’t need to get a passport unless you want to travel internationally. The question is whether the U.S. federal government can require all U.S. residents to get, carry, and provide a national form of identification. To my knowledge it cannot, but I’m not handy with a case citation to prove it. Watching the rest of this thread to see what people turn up. Note that Social Security numbers are explicitly not intended to be such IDs, although many services do use SSN as a key to distinguish people from one another.
  - dragonwriter 5y ago
    > But not mandatory. Even state IDs aren’t generally mandatory in theory, they are mandatory for specific purposes. Like most proposed national IDs. Like Passports. Like Real ID. Like EDL. Like Military ID. Like… > The question is whether the U.S. federal government can require all U.S. residents to get, carry, and provide a national form of identification. No, its not. Literally no one is advocating that. Its actually pretty well established that even states, while they can require you to use ID for a whole lot of purposes, but can’t mandate that you carry and produce one generally.
    - snowwrestler 5y ago
      Thanks

volta83 5y ago

> It is illegal for the US government to create a mandatory national identity system The system can be voluntary. If you don't need an SSN today, you wouldn't need to use that system. If some bank or health care provider only accepts such a system, just pick another one, or create your own bank / health care provider.

smsm42 5y ago
You can not create a bank that does not verify identity according to a myriad of KYC regulations. You'd be heavily fined and most likely jailed if you do. Not sure about healthcare providers, probably if you're something like a massage therapist, there are no such requirements, but for a larger one there are probably regulations too.
- InitialLastName 5y ago
  I suspect that for healthcare providers, the ID requirement is driven more by insurance fraud prevention (including Medicare/Medicaid); i.e. the insurers require the providers to perform due diligence to ensure that the patient being treated is the patient who is covered. I don't know of any examples, but perhaps a provider who did not take insurance would be able to avoid the requirement.
- volta83 5y ago
  So how do banks verify identity in the US ?
  - smsm42 5y ago
    Usually they rely on government documents (driver licenses, passports, such kind of thing). Online banking has been a bit more lax but started having more KYC requirements recently. For an American though it's usually boils down to asking for SSN and driver license.

Buttons840 5y ago

Things might magically change if we ever manage to shift the legal and financial burden of "identity theft" to the banks who made the actual mistake, and credit agencies who illegally spread false information about people.

AbjectFailure 5y ago

What are you referring to? I wasn’t aware of any SCOTUS ruling re: national ID, and after a brief search just now I still can’t find any relevant precedent.

adzm 5y ago

Things like the Real ID Act seem to be as close as we can get without constitutional changes. Something like the above could potentially be implemented like that, but still would not be as widespread as an SSN.

jandrewrogers 5y ago
The Real ID Act has not been tested in court yet because it has not gone into effect, having been delayed a decade now. As soon as it goes into effect, lawsuits will immediately drop on several grounds. Furthermore, many States have declined to implement the part of the Act that requires them to share their identity databases with the Federal government, only complying with the "identity standards" part. Prior Supreme Court cases have ruled that the Federal government cannot coerce the States, e.g. via taxation or regulatory authority, to do something for the Federal government that the Federal government is prohibited from doing itself. Without the voluntary compliance of the States, which is like herding cats, with respect to creating a national identity database, the net effect of Real ID will basically be more standardized State IDs.
- brewdad 5y ago
  Once again, citation please. You seem very sure of these Supreme Court decisions that appear to have slipped past the rest of us. Not saying you are wrong, with the firehose of info these days it's easy to miss things, even really important things.
  - jandrewrogers 5y ago
    To be clear, it isn't that a national identity database doesn't exist, they just can't force you to have a national identity token (that is a power divested to the States). Several legislative attempts have been made to link that database to some other token that is de facto mandatory even if they don't control it, like (currently) State ID. The challenge is, then, that they can't deprive citizens of rights for not having a token over which the Federal government has no control. The States have not been cooperative in this regard across the political spectrum, albeit for different reasons. So at the national level we either have optional ID tokens, like passports, or mandatory IDs that are not tokens, like SSN. There isn't one court case that informs the boundaries of the Federal government and ID, and how the government may facilitate the linking of an existing identity token to their database, it is diffused across many. The policy and regulatory practice in the Federal government threads a convoluted path through this precedent, with myriad loopholes and workarounds, and exploiting gray areas that have not been adjudicated. I've worked in this environment, which is the only reason I know about it. Every time they create a database on US citizens, they must articulate the title authority that both allows that database to exist and to be used (use and existence are, somewhat dubiously, deemed separate authorities which notionally allows them to collect data if they don't look at it -- this reasoning is not well-tested). In practice, the US government outsources identity stuff to companies like Lexis-Nexis, which rely on duck-typing to determine identity since this doesn't require the person being identified to carry a token. Just about everyone carries an ensemble of tokens that are sufficient for identity purposes if you have fewer database building prohibitions than the US government.

lostcolony 5y ago

Citation needed. "It's against the constitution" - where? Cite an article, quote a paragraph, something. You say the Supreme Court has decided this; fine, quote a court case. I'm not saying you're wrong, but I have no idea what you're talking about. We have plenty of de facto ID systems. But I'd argue they aren't mandatory because -there is no political will to make them mandatory-. What is achieved by doing so? Hell, the same political party that would object most vociferously to making them mandatory (because of religious reasons and cost to the taxpayer) is also the one pushing for laws to require issued IDs to vote, a right that -is- guaranteed in the constitution.

casefields 5y ago
Voting is not a constitutional right. Voting Rights Act is statutory like most of our laws.
- dragonwriter 5y ago
  > Voting is not a constitutional right. Yes it is. > Voting Rights Act is statutory like most of our laws. Constitutional rights are often enforced by legislation; Amendments articulating rights often explicitly authorize this. See, with regard to voting rights, the 15th, 19th, and 26th Amendments. (EDIT: also, the 14th Amendment [see Sec. 2 and 5], and, as noted in a sibling comment, the 24th Amendment. Also the 17th Amendment, though that doesn’t have a Congressional enforcement clause. Voting rights are the single most common subject of Constitutional amendments.)
- azernik 5y ago
  15th Amendment: Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. The 19th Amendment has identical language for "on account of sex", the 24th Amendment has "by reason of failure to pay a poll tax or any other tax", the 26th Amendment has "on account of age" for 18 years and older. Like many other things in the Constitution, the constitutional text defines the general principle and the power of the federal government to enforce it, and normal legislation establishes the actual enforcement mechanisms.

renewiltord 5y ago

Well, we could just make it just as mandatory as the social security system. And since the SSN is constitutional, so can this private/public pair system.

iknowstuff 5y ago

Thanks for bringing that up. Denmark, an EU member state, does not have ID cards, so it's not exactly mandatory over there. Seems weird that a SSN is not considered a national identity system? What if the federal government sunset SSNs after a bunch of big states implemented an equivalent of EIDAS on their own volition?

pionar 5y ago
It's basically because SSNs were not supposed to be used for that purpose, they were only supposed to be for the SSA to track people, like an account number. In fact, the paper cards used to say "NOT FOR IDENTIFICATION" on them. I forget when that was removed. The military started using them for ID in the 60s, then the IRS started using them in the 70s, and it's just kind of morphed into an ID number because "everyone has one".

dragonwriter 5y ago

> It is illegal for the US government to create a mandatory national identity system or coerce the States into creating one. The limits of this have been pretty thoroughly tested in the US Supreme Court. No, they haven't. There are people who have speculated that it is illegal since the idea started being discussed (serious discussions are actually fairly new, mostly a burst in the late-1990s and another one shortly after 9/11, though speculative strawman negative arguments go back a bit further, at least to discussions around HIPAA in the mid-1990s.) Those speculations have extrapolated from cases that are quite distant from a national ID (e.g., weirdly, critics of the idea have suggested a national ID would violate the protection of the eight to anonymous political speech found in the first amendment under McIntyre v. Ohio Elections Commission (1995), which aside from the WTF of what a national ID even has to do with that right, is clearly false because the First Amendment applies to the states under the 14th Amendment, so if somehow the creation of a federal ID would violate a First Amendment right, the creation of a state ID would equally violate the application of that right under the 14th. In fact, we have federal (directly issued or state-issued under federal regulations) ID cards required for certain federally regulated purposes, notably: (1) Passports (or, for certain cases, state-issued under federal rules Enhanced Driver's Licenses) for border crossing; (2) Passports, state-issued ID’s meeting federal Real ID standards, or certain other federal or federally-regulated IDs for air travel and access to federal facilities. There are usage or production requirements that government might adopt for ID that violate Constitutional protections that have been firmly articulated by the courts, but those generally apply to state and federal ID equally.

sneak 5y ago

Real ID is a backdoor national ID, just administrated piecemeal by the states. The feds have all of the secure flight data and all of the Real ID license/state ID card data, linked to SSN.

jandrewrogers 5y ago
Yes, this was the intent. However, many States have refused to implement the requirement to give the Feds access to their databases, even if though the ID conforms to standards, and the Feds don't have a lot of leverage to force compliance.

lhorie 5y ago

> everyone asks why don't we just thing that looks like a national identity system Aren't passports national/federal identity systems?

snowwrestler 5y ago
But not mandatory. You don’t need to get a passport unless you want to travel internationally. The question is whether the U.S. federal government can require all U.S. residents to get, carry, and provide a national form of identification. To my knowledge it cannot, but I’m not handy with a case citation to prove it. Watching the rest of this thread to see what people turn up. Note that Social Security numbers are explicitly not intended to be such IDs, although many services do use SSN as a key to distinguish people from one another.
- dragonwriter 5y ago
  > But not mandatory. Even state IDs aren’t generally mandatory in theory, they are mandatory for specific purposes. Like most proposed national IDs. Like Passports. Like Real ID. Like EDL. Like Military ID. Like… > The question is whether the U.S. federal government can require all U.S. residents to get, carry, and provide a national form of identification. No, its not. Literally no one is advocating that. Its actually pretty well established that even states, while they can require you to use ID for a whole lot of purposes, but can’t mandate that you carry and produce one generally.
  - snowwrestler 5y ago
    Thanks