Update On TSA’s Lawlessness Over Body Scanners

by Marc Scribner on August 3, 2012 · 3 comments

in Mobility, Nanny State, Personal Liberty, Privacy

As I noted previously, the Transportation Security Administration has failed to comply with a court order demanding that they initiate a notice-and-comment rulemaking regarding the use of Advanced Imaging Technology body scanners in airports, as required by the Administrative Procedure Act.

This Wednesday, the D.C. Circuit Court of Appeals ordered TSA to respond to the Electronic Privacy Information Center’s petition for writ of mandamus. The Court also ordered that an amicus brief submitted by CEI be accepted.

Today, McClatchy ran an op-ed on their wire service authored by former American Airlines chairman and CEO Robert L. Crandall and myself, where we explain in more detail the problems caused by TSA’s lawlessness. Read it here.

And finally, the petition to President Obama demanding that he require the TSA to follow the law needs a bit over 6,000 more signatures by August 9. Please sign it if you haven’t already!

Bea August 4, 2012 at 6:10 am: It’s too bad you’re wasting your time and your donors’ money on this endorsement of the administrative regime. Why not agitate to abolish the TSA instead? Even if you prevail and the TSA actually obeys the law for once, it will do no good: the Administrative Procedures Act only requires agencies to solicit public comment; nothing says they have to abide by that comment.

TSA receives thousands of public comments every day — scathing ones. It hasn’t listened to them yet. Why will it heed those more formally submitted under this silly law?

Besides, a larger issue is at stake here: the entire bureaucratic structure. It is entirely unconstitutional. Congress is nowhere authorized to “delegate” to agencies power the Constitution doesn’t give it in the first place. Yet bureaucracies account for most of the tyranny we currently suffer.

You and Cato are legitimizing this totalitarian and totally unconstitutional structure. Why?
Amy Alkon August 5, 2012 at 3:00 am: Thanks so much, Marc, for that terrific op-ed. There’s a constant erosion of our civil liberties in this country these days, and every bit of fight against that is important. I think it’s tragic that we don’t see ordinary citizens protesting at airports. Instead, people are all “please, thank you, and yessir!” as they’re made to bend over and have their genitals fondled in the name of a massive jobs program and obedience training for the American public to go quietly as their rights are yanked from them.
Marc Scribner August 5, 2012 at 7:03 pm: Bea,

You seem to be missing the whole point of this action over the Administrative Procedure Act (the court, in fact, previously threw out claims related to the Fourth Amendment — so much for the Constitution): Title 5 says a court can invalidate an agency’s rule if it is deemed arbitrary and capricious. To get there, we need to go through the rulemaking process. This is the only way to give folks the legal standing they need to challenge regulations in court. That’s just how it is done under legislative, regulatory, and court precedent. This is the beginning of a multi-year battle with the agency. And that is what CEI has done on a large number of regulatory fronts over our nearly 30 years while scoring some victories. We’ve been saying this for years yet only now are sizable segments of the public beginning to pay attention. But we are and have always been vastly outgunned financially compared to the pro-regulation side.