The Transportation Security Administration (TSA) reportedly began charging travelers without REAL ID a $45 fee to fly domestically starting February 1, according to reporting by Frommers. However, career travel industry expert Edward Hasbrouck argues that no current U.S. law requires passengers to present identification or pay this fee to board a commercial flight.
Hasbrouck states that requests for ID began in 1996 via an executive order from President Clinton, not an act of Congress, establishing a precedent where airlines and the TSA could ask but not legally require documentation. Even the TSA’s own documentation suggests passage is still possible without ID, contingent on secondary screening.
The REAL ID Act of 2005 governs which identification forms federal agencies accept where ID is legally required, but it reportedly did not establish a new mandate for air travelers. Previous legal challenges, such as those brought by John Gilmore, failed because the TSA conceded the absence of a law requiring ID, offering alternative screening procedures instead.
Since 2008, the TSA has utilized a system where travelers without ID must submit to identity verification via commercial data brokers, a process subject to the Paperwork Reduction Act (PRA). Critically, Hasbrouck notes that the online forms for paying the $45 fee, or the TSA’s internal Form 415, lack necessary approval from the Office of Management and Budget (OMB).
Without OMB approval, the PRA provides a complete defense against any penalty for non-compliance with federal information collection requests. This administrative hurdle suggests the enforcement of the fee or additional identity questioning lacks the requisite legal backing for mandatory compliance.
Legal challenges against these practices remain difficult, as evidenced by Phil Mocek’s case where agents called airport police during his documentation efforts, resulting in high legal bills despite his eventual acquittal. TSA agents and police often benefit from qualified immunity, deterring frequent legal opposition to ID demands.
This situation highlights a tension between perceived security measures and established administrative law regarding federal information requests. While the law, as written, supports the right to fly without ID or fees, exercising that right involves navigating potentially costly confrontations with checkpoint personnel.
Future developments could involve state-level resistance, such as Oklahoma legislators petitioning to block driver license data uploads to the SPEXS database, arguing lack of federal mandate and state funding. The enforcement of these new fees appears precarious until the underlying administrative requirements are formally satisfied.
