TSA and the Constitution
 

I've read a few thousand posts in my time here on TS/S that state, either directly or implied, that if only TSA was disbanded/abolished/go back in time and prevent then we would be able to save the Constitution. My question is- what parts of the TSA's mission and/or actions are unconstitutional.

Be specific as to what about the TSA is offensive (legally speaking, that is) and what parts of the Constitution are affected.

Incidentally, this is a serious question in case there's any doubt.

Currently, the Constitution's interpretation unfortunately includes permissibility of "implied consent" searches and permits searches that would normally be forbidden to be conducted if "public safety" is the reason for the search.

I disagree mightily with both of these assertions. All searches should only be conducted with explicit consent and permission. And "public safety" be damned: the should never be such exceptions to the 4th Amendment.

Do you mean the 4th Amendment, Spiff?

"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 no Warrants shall issue, 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."

The 5th protects against abuse of government authority in legal procedures.

I forgot to add to my post the question that how is the TSA different today than previous screening?

And to clarify, TSA searches aren't implied consent. I once thought they were, as they were what seemed to apply from my LE work. Actually, they're administrative searches, which are derived from United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973).

I think that one is pretty easy. Pre 9/11 it was private. Post 9/11 it's Government.

In case anyone needs to review. US Constitution

Yes, thanks. :o Typo fixed! :)

I understand that, but I meant in form. Pre-9/11 we were screened. Post-9/11 we're screened. Pre-9/11 if something was found it was turned over to LE. Post 9/11 if something is found it's turned over to LE.

In form and function I can't see much difference.

Me neither. But there are quite a few folks on this message board who have a problem with the Government being involved in searching them.

There's the whole issue of evidence found in an administrative search being used in a criminal prosecution.

Aside from that, I don't care what the Supreme Court says, government instituted searches before boarding aircraft are plainly against the letter and spirit of the 4th amendment. The Supreme Court is just wrong.

Just like pre-9/11, no? Items found prior to TSA's creation weren't used in criminal prosecutions?

Not so plainly to SCOTUS, I guess. ;)

Yeah, we're kind of funny that way. Today, it's the airport. Tomorrow, it's the parking lot, the next day, it's your home. :mad:

Careful, Spiff. I hear the black helicopters hovering. :)

Give the thugs an inch and they'll take everything. History is a wonderful teacher, should we choose to listen...

They're a bunch of senior citizens in black gowns who aren't immune to political pressure. That's the way it's always been. Sorry to break it to you.

fixed link

Y'all don't tank this thread before I get my post in.

Or they simply disagree with you. :)

You read well.

How about 5 quick ones? When did the private agencies doing security at FAR part 139 airports decide they could have my airman certificates revoked? (4th amendment issue) without appeal except to the very agency that had my certificates revoked? 4th and 5th amendment I believe. Shutting down my business "because they can" would be a bit inconvenient to me and most other people.

What list did the private agencies doing security at FAR part 1396 airports use to decide who has "permission" to fly and who doesn't, and even better still who can have their boarding passes printed other than at the ticket counter and who can't. And if a passenger disagreed with this "minor inconvenience" such as Robert Johnson or Robert Gray or Lorreta Sanchez, which due process is available so their travel can be "equal under the law" like other travelers? 4th amendment I believe.

And of course I'm really curious how many inspectors of the prior private agencies damaged the air temperature probes on aircraft (airworthy item by the way) so that the aircraft were grounded until the probes were replaced? And of course if it did happen, did the private agency compensate the air carrier for the damage? 5th amendment if you need to look it up.

And of course the one I really like is under what authority can the TSA issue rule-making without a notice of proposed rule-making.

And for the TSA screeners in Nashville (BNA) who's recent foray in the non-sterile area searching employees/passengers/pilots/owners of private aircraft for non-existent prohibited items. I'm actually kind of sad I was not there for that because I would enjoyed a TSA screener attempting to block my way to my aircraft.

While I sympathize with you (I'm not sure of the circumstances behind it so I can't judge if it was valid or not) that's not a criminal issue. Licenses and the like are admin and not really governed under the BOR or Constitution anywhere I'm familiar with. If I'm in error please point me in the right direction.

There were criminal charges filed?

5th Amendment mentions "public use." Where is that mentioned in your post? Again, I sympathize with your position and agree if damage was done it should be replaced, but that's not a Constitutional matter.

And of course, none of the above are relevant to the TSA, are they?

Constitutional relevance? Admin rules aren't really Constitutionally protected IME.

You have a link? This is the first part of your post that seems relevant.

I believe this is the reference:

tsa conducts inappropriate screening

deleted, MCTUBBS beat me to it.

Yep, that's overstepping.

Still, that's a problem of execution, not principle. LEOs overstep their authority all the time. It becomes a Constitutional issue when the principle it operates under is in violation of the Constitution, not individual actions.

If LEOs could just search people at random on the street with no cause that would be a Constitutional violation. If an individual LEO does so, that's excluded per the exclusionary rule. It doesn't mean LE work is unconstitutional.

Given that the vast majority of the checkpoints are still using the same magnetometers and x-ray machines that the private screeners used, I would say very little. Except for the likelihood that the private screeners were probably held accountable, whereas the TSA stands for Teflon "Security" Agency.

Sure, the FAA closed the barn door after the horses left in prohibiting box-cutters immediately after 9/11, and the TSA has expanded the list a bit.

But what's out there right now is nothing that couldn't be done by private screeners. It was the FAA's negligence, coupled with The Bush Administration's failure to act on the 8/6/01 warning that led to the events on 9/11.

Now we're paying the price for simply crossing our fingers for so long and a knee-jerk reaction that mainly focuses on PR and the feeling of being safe.

I can't disagree too much there. Although most of the TSOs I've met are excellent individuals and motivated by a sense of mission, I feel the TSA as a whole somewhat poorly thought out.

But does all that fall under the category of "unconstitutional?" :)

I think you need to learn a bit more about law. The purpose of the exclusionary rule is to remedy specific violations of the Constitution by LEOs. The fact that the exclusionary rule exists does not mean that specific actions by LEOs are not unconstitutional.

Really? The TSA is the agency who can have my airman certificates revoked, and I never once applied to the TSA for any of my fracking airman certificates. I thought they were issued by the FAA provided I comply with their rules?

Fine and dandy that you say no criminal charges were filed against suspicious people (or people with suspicious names anyway) for attempting to get a boarding pass, does that make it OK? A Palm Beach County Sheriff's deputy could question/detain me each time I walk on the sidewalk from my house to my car in the morning, but it gets to a point he needs to answer why. The reason because known criminals are known to walk on the sidewalk sometimes is not good enough.

Oh since it was a TSA inspector who did damage the air temperature probes on those American Eagle ATR42s, the TSA decided they would NOT fracking pay for it. The air temperature probes were in fact fracking used by the inspector to climb up the aircraft? How is that not government use? The fracking attitude of the TSA in Chicago to have no respect for its damage to $40m aircraft is the best indicator of what it knows of the US Constitution.

Oh and by the way, I guess you would not mind if a TSA aviation security inspector searched your home for your records of US citizens versus non-US citizens that you have interviewed? If you object to him searching it is only a $10k fine.

I will treat every TSA employee with the same respect that the TSA has for me. Trust me I give absolutely no quarter, not even fair warning.

I'm not talking about individuals here. While I do question the choice of people being a TSAer, they are human beings. I respect them as humans, but when it comes to the TSA itself, forget it.


If you will look up at my original reply, I replied to your additional question.

But if you want the question of The Constitution answered, I would say that I'm sure....no....positive.....that the TSA was carefully crafted to skirt the edges of The Constitution. I do think we're one good legal dogfight away from the TSA needing to answer to their practices at the checkpoint, but I don't think anyone is willing to do that.

In the too-many-to-count press conferences and speeches the political types and the talking heads have made saying that the terrorists want to change us and the way we live and we can't let them win. I submit that the terrorists HAVE won, starting with the TSA.

It's my feeling that what the TSA does goes against the spirit of what The Framers had in mind. Of course times change, but the principles and the spirit of what our Constitution is all about is destroyed by the simple set-up of the unaccountable powers that our government has given screeners at the checkpoint.

Before we jump off too heavy on this we must first agree that even if the Constitution does not explicitly state a right, a violation of that right is still unconstitutional due to Amendments 9 & 10.

The right to freely travel has been upheld by the Supreme Court as being a Constitutional right in many cases.

One can argue that the UNREASONABLE statutes, rules or regulations that the TSA burdens us with are unconstitutional.

I would argue that the rule/regulation of the forced ID verification is unreasonable because it is illegal and therefore unconstitutional.

The illegal forced ID verification is also unreasonable because my ID does not prove or disprove my threat to aviation. If the legally prescribed screening is done properly my ID does not matter.

The illegal forced ID verification is unreasonable because if I am on the list I have not had the chance to have the reasonableness of my inclusion vetted by a court. My freedom of movement right is being squashed by an unreasonable rule or regulation.

This brings up Amendment 5

"nor be deprived of life, liberty, or property, without due process of law" If the list is secret and I have no right to face my accuser it violates the 5th amendment and amendment 6. My liberty is being deprived without due process and if I am on a no fly list my right to all of amendment 6 is being violated.

As long as we are on amendment 5, the very fact that the TSA takes items at the checkpoint and uses them in training or gives them to another Governmental entity violates this portion of 5 "nor shall private property be taken for public use, without just compensation". We can argue the semantics of "surrendered" vs. "confiscated" until the cows come home, but if reasonable people feel that they have no choice or are given no choice in the relinquishment of their items, they have been confiscated.

TSA fines are unconstitutional because I have no right to a jury trial and the value in controversy is over $20. When a Government entity issues a fine, they are in fact suing you for that amount.

Before anyone hollers that you can appeal the fine, unless that appeal is in front of my peers that appeal is unconstitutional. If the TSA requires I pay double the fine to appeal that would violate amendment 8 as that bail is excessive. (Bail, security paid as a guarantee of that person's appearance for trial.)

If the TSA is doing what they are supposed to and searching for weapons, explosives and incendiaries the screenings are Constitutional because they are reasonable. When the TSA deviates from the legally prescribed screenings they run foul of the Constitution. Reading the contents of my wallet is off limits. Running an ID check is off limits. Looking under my clothes when I am not at the checkpoint with a MMW device or heat imaging device is off limits.

I am sorry I have not really studied the TSA vs. the Constitution in depth so I don't have very much.

Contrary to TSA's assumption EVERYTHING done by a Government agency on U.S. soil is governed by the U.S. Constitution.

Wow I was this close to jumping all over you. For those that misread what he said like I did, let me clarify what he is saying.

If a Government entity endorses or knowingly allows its employees to act in an unconstitutional manner then the weight of that falls on the entity.

If on the other hand an employee of a Government entity acts alone in an unconstitutional manner the weight falls strictly on that employee.

BOTH acts are unconstitutional it just comes down to who gets smacked for it.

The blame game for 9/11 stretches further back than Bush. If we go down this road it will drown us in irrelevant comments.
Let's keep politics out of this.

Fact is this, on 9/11 we were attacked. The blame falls solely on those that attacked us. The blame for things that we, the people, have allowed to happen in response to the attacks fall solely on us.

The TSA thinks they have been carefully crafted to skirt the Constitution by using semantics to get around the law. Their house is built on sand and it will come crashing down as long as we are persistent with the shovels.

I am willing to fight the TSA in court with a well planned test case but I lack the money to do so. You guys have no idea how much I want to parade the TSA into a court and beat them senseless. If my tombstone said "Here lies Trollkiller, he slayed the TSA" I could die happy.

Correct. Like my example of a cop overstepping his authority, it's a constitutional violation but you can't paint the entire agency as such. If a TSO or even an entire office oversteps (like in the link posted) you can't say the entire agency is in violation of the Constitution.

In order for an entire agency to be viewed as unconstitutional or "shredding the Constitution" or whatever you have to point out policies that are out of line and not individual actions.

Sorry for any confusion.

Not what I was saying at all.

Government-required identification for travel immediately comes to mind.

Really? If that's the case I stand corrected. I didn't realize the TSA was regulating certificates.

That would be outside their scope, IMO. Whether it rises to the level of unconstitutional, though, seems a little suspect to me.

Individual actions can be found in abundance that are unconstitutional. But to indict the agency (TSA as a whole) it must be a matter or policy.

Now we're getting somewhere. :D

This is one of the areas that I was thinking of when I posted this topic. This is one of the areas that seems to me to be butting up against the Constitution. But then, of course, we come to the question of whether or not there's a Constitutional right to fly. We obviously have a right to travel, but the conveyance itself isn't really specified. If aircraft are disallowed there are still a number of other conveyances available. They just might not be as efficient.

Hell, we have to have government-required ID to drive too, do we not? Hell, we even have to have government-required ID (SSN) to do a lot of things. Loans, home purchase, etc. is near impossible without it.

Here's how I see it...

TSA itself is not unconstitutional. Searches at the airport are upheld and has been going on since the 70's. When you buy a plane ticket, you're consenting to a search at the checkpoint. This has been in effect since the 70's, and the only big difference nowadays is that a federal agency, as opposed to private security firms, are taking over the searches.

That said, some actions and policies of TSA can be considered unconstitutional, such as the no-ID policy. The liquid policy, while silly, isn't actually unconstitutional because it falls under the color of law. On the other hand, not having an ID and being subject to verification, especially for domestic flights, can be considered to be voiding current Terry-stop laws, when you do not have to present ID when asked. Federal law, however, is a complicated beast, especially with administrative policies. I still think the no-ID rule is silly and should either go away (no ID checks), or being given a SSSS when not having ID (no verification - anonymous travel). If I had to settle for a compromise, I would go for the old policy (no ID, you get a SSSS only).

Just my two cents.