How does the REAL ID act violate the Bill of Rights?

[PKG]

Sorry to ask such a stupid question, but I've heard supposed unconstitutionality/illegality of the REAL ID act bouncing around the joint, and I'm really kind of confused. Amendment X, perhaps, but the "necessary and proper" clause in Article I Section 8 would cover this. Could anyone enlighten me?

[salvorhardin]

1. I think what the Governors are arguing

is state's rights.

[DrDebug]

2. I don't think it violates the Bill of Rights, ...

... but it violates the International Bill of Rights.

The International Bill of Rights is called ICCPR which is its formal name in the excerpt below:

How the REAL ID Act Violates United States Law, In the Form of the ICCPR

(...)
Let's begin by taking a look at the ICCPR - a treaty ratified by the United States - and how the REAL ID Act violates, and abrogates, it.

Article 14 of the ICCPR provides that persons convicted under law shall have the right to review by a higher court. But REAL ID purports to eliminate all habeas corpus review for immigrants who claim they have been treated unlawfully by the Department of Homeland Security. It is also purports to strip federal judges of the power to temporarily stay the immigrants' deportation, pending appeal of a negative determination.

Article 22 of the ICCPR, and Articles 7 and 8 of the ICESCR, provide for the right to organize collectively at the workplace, and the right to strike. But the REAL ID Act allows the Department of Homeland Security to ignore local, state and federal laws to the extent that the Secretary believes necessary to "expeditiously" complete the security border fences with Mexico and Canada. Collective bargaining laws are not exempt. (Nor are laws on environmental protection, safety and discrimination).

Article 17 of the ICCPR - like Article 12 of the Universal Declaration - provides for a right to privacy. Yet, as discussed earlier, the REAL ID Act sets complex federal standards for all drivers' licenses, and compels states to scan all passports and visas and share the massive database of information created -without privacy protections. This collected information will include social security number, phone numbers, residence addresses, and in some cases, medical history (on vision, needed medication, and more).
(...)
http://writ.news.findlaw.com/leavitt/20050509.html

More national and international violation concerning the Real ID in the link as well

[PKG]

3. The ICCPR is not United States law, though.

According to the Wikipedia article on it:

When the Senate ratified it, it ratified it with reservations, declaring that "the provisions of Article 1 through 26 of the Covenant are not self-executing" and that "the Covenant will not create a private cause of action in U.S. Courts."

http://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rights

This implies that it is an entirely symbolic treaty, without any actual binding legality attached to it. Moreover, the Supreme Court case Buell v. Mitchell, regarding the Death Penalty, set precedent that the ICCPR is entirely symbolic.

The quoted author barely touches on the fact that the Senate declared the convention powerless unless supported by legislation--and when he does, he doesn't actually provide a counter-argument, but just moves on.

Any more information?

[DrDebug]

4. Interesting. Another treaty not signed... n/t

[PKG]

5. No, no, it was signed, just in a

"but we're not gonna do shit about it" way ;)

[PKG]

6. Anybody else?

[RC]

7. This explains the so call REAL ID better than anything else I've read

Congress passes Gestapo ID legislation

<snip>
US Representative James Sensenbrenner (Republican, Wisconsin) hailed the bill's success, which he claimed will "assist in our war-on-terror efforts to disrupt terrorist operations and help secure our borders."

It will do no such thing, of course, but it will give the federal government long-sought control over the movements of Americans, which is exactly what about half of its boosters had in mind. It will also make life more difficult for undocumented immigrants, which the remaining boosters had in mind.

Within two years' time, state ID cards and driver's licenses will have to satisfy federal standards. The new cards must feature anti-counterfeiting measures and machine readable elements (i.e., RFID) approved by DHS, and anything else that DHS thinks would be useful. The language is open-ended, meaning that DHS can issue new requirements as it sees fit, whenever some new gimmick for invading the privacy of citizens captures its imagination.

<snip>

Soon it will be impossible to obtain government services, travel domestically by hired car, intercity bus, train, or plane, enter a building, open a bank account, pay by check, drink at a pub, enroll in school, or obtain insurance without having your unique federal ID card scanned at the gate. The potential for mission creep, and for mass data aggregation, is absolutely unlimited. DHS can decree that photographs are not enough; it may decide that it also wants fingerprints, iris scans, and DNA information encoded in the cards, and in its massive databases. And Congress has given it the power to decree that, and more.
http://www.theregister.co.uk/2005/05/11/real_id_makes_terrorists_happy/