I found
this draft law review article that details the case law for administrative searches. It is highly footnoted and documented. It is long. It discusses the origins of the administrative search and how the government justifies its current practices. It takes the history case by case from the first decision in 1967 through decisions as recent as this year.
Here is the bottom line: The courts have pretty much said they can do whatever they please. The restrictions on government action have become pretty much non-existent.
As you read through the text of the article, you will come across cases that reflect issues that are directly related to TSA policies. The actions of the TSA are reflected in ways that tries to match their actions to the exceptions carved out by the courts. (If you want to be particularly shocked, look at the
Smith case discussed on Page 49, pdf page 52.)
The abstract:
Abstract:
Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and contends that much of the current mischief in administrative search law can be traced to the Supreme Court’s conflation of two distinct types of searches within one doctrinal exception – namely “dragnet searches” of every person, place, or thing in a given area or involved in a particular activity and “special subpopulation searches” of individuals deemed to have reduced expectations of privacy. Dragnets came first, and special subpopulation searches came later. As the category of administrative searches tried to accommodate both kinds of searches, it gradually lost the ability to impose meaningful limitations on either one. To bring clarity and sense to this area of the law, this Article proposes that we disentangle these two kinds of administrative searches.
Citation:
Primus, Eve Brensike, Disentangling Administrative Searches (September 1, 2010). Columbia Law Review, Vol. 111, 2011; U of Michigan Public Law Working Paper No. 215. Available at SSRN:
http://ssrn.com/abstract=1670947
This may be hard work, but it may be time to go to school. This does not look good. And, the writer is sympathetic to our complaints.