Did South Carolina's refusal to implement REAL ID stop private companies from seeking federal exceptions?

Plain-English summary

A legislator asked whether South Carolina's law refusing state participation in federal REAL ID implementation also prevented private industry from requesting an exception for security-clearance practices. The AG said the statute spoke only to the State of South Carolina as a state. It did not cover private industry, so it did not bar a private company from asking to use its own identification documents under a federal exception.

The AG did not say such a request would be granted. He said the federal Department of Homeland Security had broad discretion over administration of REAL ID and would decide whether to grant an exemption or exception. The opinion followed a separate March 2008 AG opinion concerning a possible state request for an implementation deadline extension.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the South Carolina law forbid a private employer from asking for a REAL ID exception? A: No. The AG read the law as applying to the state itself, not to private industry.

Q: Did the opinion grant private companies an exemption? A: No. It addressed whether state law prevented a request. The AG said the Department of Homeland Security would decide whether any federal exception was granted.

Q: Could a company ask to use its own identification documents in security-clearance practices? A: The AG said state law did not bar such a request, including one involving the company's own identification documents. Federal officials retained the decision on the request.

Background and statutory framework

The opinion quoted Section 56-1-85's statement that the state would not participate in federal REAL ID implementation. The AG distinguished the state from a private company and confined his answer to that statutory reach. He expressly deferred the federal-exception decision to the Department of Homeland Security.

Citations and references

Statute discussed: Section 56-1-85. Federal law discussed: REAL ID Act.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-27-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/sandifer-b-os-8582-3-27-08-federal-real-id-act-private-industry1.pdf

Original opinion text

March 27, 2008

The Honorable Bill Sandifer
Member, South Carolina House of Representatives
District #2 – Oconee and Pickens Counties
522-B Blatt Building
Columbia, South Carolina 29201
Dear Representative Sandifer:
In your letter of March 27th to this office, you referenced the provisions of S. C. Code annotated Section 56-1-85 which provides that “[t]he State shall not participate in the implementation of the federal REAL ID Act.” In our opinion dated March 24, 2008, we addressed the question of whether this statute would prohibit the state government from seeking an extension of the deadline for implementation of the REAL ID Act. You have asked whether this statute would prohibit private industry from requesting an exemption from implementation of the REAL ID Act as it relates to their security clearance practices. In the opinion of this office, Section 56-1-85 speaks only to the State of South Carolina as a corporate State and does not apply to or cover private industry. Therefore, a private industry would not be prohibited from seeking an exemption from implementation of the REAL ID Act as it relates to their security clearance practices, including the use of their own identification documents. Of course, the Department of Homeland Security has broad discretion to administer the federal REAL ID Act, and it would be a matter for their discretion as to the granting of any exemption or exception. Yours very truly,

Henry McMaster
HMcM/cr