TAC Texas Brief- Transportation Security Administration    

Author: Dr. Daniel R. Coleman, D.B.A., Communications Coordinator, Tenth Amendment Center-Texas

Contributing Author: Steve Baysinger, Chair, Tenth Amendment Center-Texas

Background:

Prior to March, 2003, the Transportation Security Administration (TSA) was a division of the Department of Transportation (DOT).  Today, the TSA is part of the Department of Homeland Security whose mission is to protect “the Nation’s transportation systems to ensure freedom of movement for people and commerce,” (TSA 2011).

According to a study by William and Mary University (Atkinson, Boardman, Walters, 2009):

  • Prior to the TSA’s assuming the responsibility for security at the nation’s airports, it was the responsibility of each individual airport, and the airlines providing service to the public, to provide transportation security.
  • Prior to the September 11, 2001, assault on America there were approximately 28,000 screeners in U.S. airports, with an estimated annual security cost of $1 billion to the US airline industry.
  • In 2002, the TSA was initially composed of a small group of employees with expenses totaling $95 million. As of 2009, the TSA had more than 50,000 employees and expenses of $4.733 billion!

Approximately 50,000 Transportation Security Officers (TSOs) work at 450 airports nationwide. The TSOs screen nearly 2 million passengers a day,” (TSA, 2011). According to John Pistole, Director of TSA (as of November 2010) there are 385 AIT scanners in 70 airports across the country, but “he expects to expand that number to one thousand by the end of 2011,” (as cited by CNN, 2011). Further, TSA declares “Anyone who refuses to complete the screening process will be denied access to airport secure areas and could be subject to civil penalties,” (as cited by CNN).

Analysis:

 The Fourth Amendment to the Constitution:

The Fourth Amendment to the United States Constitution provides the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and Warrants shall not be issued, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “In the United States criminal court system, probable cause refers to facts or evidence that would make a reasonable person believe that a crime or wrong doing has been, is being, or will be committed,” (Probable Cause, 2011).

The TSA’s apparent impunity from Fourth Amendment lawsuits is derived from the 1973, 9th Circuit Court ruling (U.S. vs. Davis, 482 F.2d 893, 908).  The key wording in this ruling included, “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft…,” an administrative search is allowed if  “ no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives confined in good faith to that purpose, and passengers may avoid the search by electing not to fly,.” (Frieschling, 2010)(emphasis added).

  • TAC-Texas Position: The TSA physical searches are inherently a violation of the 4th Amendment, in addition to being unnecessarily intrusive and intensive. The 9th Circuit ruling does not supersede the rights of individuals and state/local authorities as guaranteed by the Constitution.  The TSA should assume an advisory role to assist State and local entities.
  • Unfunded Mandates Reform Act of 1995 (the Act), enacted as Public Law 104-4 on March 22, 1995:

The Act is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector. “The TSA concluded the requirements of Title II of the Unfunded Mandates Reform Act of 1995 (did) not apply when rulemaking actions are taken without the issuance of a notice of proposed rulemaking. Accordingly, the TSA (did) not prepare a statement under the Act,” (Federal Register).

On Aug. 5, 2011, Congress passed an extension of the FAA authorization to collect:

  • The 7.5 percent tax on the base ticket price.
  • The domestic segment tax of $3.70 per person per segment (a single takeoff and single landing).
  • The international travel facilities tax of $16.30 per person for flights that begin or end in the U.S., or $8.20 per person for a flight that begins or ends in Alaska or Hawaii.
  • The 6.25 percent tax on the amount paid for transporting property by air. (IRS, 2011).

Last year, airlines and passengers contributed $2 billion in taxes and fees to the TSA. The federal government — in other words, taxpayers — picked up the rest of the organization’s $8 billion tab (CNN Money, 2011). This amount does not include the economic cost of wait times forced upon travelers.

  • TAC-Texas Position: Mandated licenses and clearances for private individuals and companies, as well as screening activities have economic costs well in excess of $100 million dollars required for TSA’s Federal Register disclosure. The activities of the TSA, without proper disclosure, have created substantial costs on the airline industry, citizens, residents and visitors to the United States, in violation of the Unfunded Mandates Act of 1995; and therefore should be discontinued. 
  • The Tenth Amendment to the Constitution and the Presidential Executive Order 13132:

The Tenth Amendment to the US Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The TSA has analyzed its policy under the principles and criteria of Executive Order 13132, Federalism. “We (TSA) determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, we have determined that this final rule does not have federalism implications,” (Federal Register, 2001).

  • TAC-Texas Position: Airports are located within the jurisdiction of State and local governments and no enumerated power in the Constitution gives the federal government the authority to regulate them. The actions by the U.S. Transportation Security Administration (e.g. physical searching, seizing of personal possession, and/or detainment) at airports or other transportation venues without probable cause that a weapon or explosive will be brought aboard by an individual are a violation of the federalism principle. Except in times of national emergency, (like every other government agency), the TSA is subject to the Constitution of these United States. As a national emergency has not been declared, the TSA is in violation of the Tenth Amendment, as well as is culpable in failing to publicly disclose its impact on Federalism in the Federal Register; and therefore should cease and desist from further unlawful activities.

Action Points:

The following recommendations are made to restore the integrity of the states and the bounds of the Constitution:

  • Reestablish: Unabated and untaxed travel within the boundaries of an individual state or between states is a right of every American citizen, legal resident and authorized visitor.
  • Reestablish: Free travel can only be interrupted if there is a reasonable suspicion or evidence that a crime has been, is being, or likely to be committed. The Fourth Amendment places the burden of proof on government officials to prove probable cause, and/or obtain warrants.
  • Reestablish: Choosing to purchase an airline ticket from a business is a private choice. Choosing to fly on an airplane does not constitute probable cause that a crime will be committed. Therefore physical searches of travelers and their personal effects by federal agents are a violation of the search and seizure laws in the absence of probable cause.
  • Reestablish: Airport security is the responsibility of the individual states and localities to enforce, as provided in the Tenth Amendment.
  • Reestablish: Travel within the State is not in the purview or authority of the federal government or its agencies.

 

References:

Atkinson, J., Boardman, J. Walters, S. (2009 December). Analyzing the Transportation Security Administration’s September 11th security fee. Retrieved from http://www.wm.edu/as/publicpolicy/documents/prs/dhs1.pdf

Cable News Network. (2010, November 17).TSA chief faces lawmakers on pat-downs, body scans. CNN. Retrieved from http://edition.cnn.com/2010/TRAVEL/11/17/airport.security/

Dickler, J.  (2011, September 8). Post 9/11 travel: What airport security costs us. CNN Money. Retrieved from http://www.dot.gov/about.html#whatwedo

Federal Register (2001). Imposition and collection of passenger civil aviation service fees. Retrieved from http://www.federalregister.gov/articles/2001/12/31/01-32254/imposition-and-collection-of-passenger-civil-aviation-security-service-fees#p-38

Frischling, S. (2010 November 20). How the TSA legally circumvents the Fourth Amendment. Retrieved from http://boardingarea.com/blogs/flyingwithfish/2010/11/20/how-the-tsa-legally-circumvents-the-fourth-amendment/

Internal Revenue Service (2011, August 10). Retroactive reinstatement of the air transportation excise taxes: Frequently asked questions http://www.irs.gov/newsroom/article/0,,id=242812,00.html

Laing, K. (2011, May 25). Texas lawmakers shelve bill to ban TSA pat-downs. The Hill’s Transportation. Retrieved from http://thehill.com/blogs/transportation-report/tsa/163343-texas-tsa-pat-down-ban-killed-after-justice-dept-warns-flights-would-be-grounded

Probable Cause (2011). Probable Cause Website. Retrieved from http://probablecause.org/

Transportation Security Administration (2011). Who we are. TSA Website. Retrieved from http://www.tsa.gov/who_we_are/workforce/index.shtm


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