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:

Citation:

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.

I don't care what courts have decided, if getting on a commercial airplane requires an electronic strip search or invasive pat down then the law is not a law of the people.

TSA is wrong in forcing this on the public and I hope I can do something to hold them accountable for these actions.

I can say with certainty that any TSA employee who conducts these invasive screenings will be viewed by myself as unworthy of being an American.

I agree wholeheartedly. But, I am a bit overwhelmed with the apparent fruitlessness of resistance. Maybe our cause will be the push back that succeeds.

The paper was interesting (it's actually a draft of a forthcoming law review article). My take on the paper is that government agencies may think they can get away with more than is actually constitutional in administrative searches. And it doesn't look good in terms of what agencies such as the TSA will institute, and what lower courts might say is okay. But if patdowns and NoS were to make it to the Supreme Court, the Court might well find their use as general "dragnet" searches unconstitutional.

On the other thread, it was stated that the TSA would likely argue that because the NoS don't involve physical contact they are less intrusive than patdowns and thus acceptable as primary screening. I think a really strong counter-argument can be made that they are not acceptable. If the TSA were to strip search, not virtual strip search, us as primary screening, even if we undressed ourselves, that would clearly be overly intrusive. I'm not sure if or why, as a legal matter, that the undressing is done by a machine changes its intrusive nature. I think (hope?) the Hartwell opinion referenced the physical nature of the search because that was the only alternative at the time, because NoSs were not yet at airports, not because an intrusion must involve physical contact to be too invasive. My personal opinion on this, although I'm no Fourth Amendment expert, is that the Nude-o-Scopes and the patdowns are not "minimally intrusive" and cannot constitutionally be used for primary screening, although would be acceptable for secondary screening if there was some reason for suspicion. However, the courts may well disagree with that analysis given the confusion about administrative searches discussed in the paper.

A glimmer of hope, however, can be found in Safford Unified School District v. Redding. The Supreme Court in 2009 found that an administrative strip search of a student to search for prescription drugs was unconstitutional.

As a native Southerner, I'm acquainted with several individuals who were intimately involved in the civil rights battles of the 1960s. I'm not sure any of those folks ever thought success was sure. But they knew they had to try.

I'm proud to call these people my heroes, and hope I can aspire to do so well under similar circumstances.

Interesting read. Here's something to put in the author's framework.

IANAL; however, in the context of the paper the NoS seems to be clearly articulated within a statutory regulation of passenger screening, the 19th century framework the author discussed. Combined with the blatant invitation in the statute to plead state secrets and that seems to make the NoS much harder to go away than the "enhanced" pat down, which seems to be located within "shall provide for the screening of all passengers" at 49 USC 44901.

I'm really disgusted now. So now we need to write letters to specifically ask that the words "backscatter x-ray scanners" be removed from a piece of law.

Now I'm going to have to track down to see of my congressman/senators voted for it. These "congresspeople" need their feet held to the fire. We also need to get the word out to people whose congressmen/senators support irradiating the traveling public.

http://www.law.cornell.edu/uscode/49...1----000-.html

Those terms don't actually occur in that law from what I can find, unless it was later amended perhaps?

S.2845 (Public Law 108-458 (find: 'x-ray')) Intelligence Reform and Terrorism Prevention Act of 2004

House Roll Call, Senate Roll Call

Looks like it was a popular bill at the time.

Document scanners? Seriously?

How the hell can you construe a "document scanner" to be "explosive detection equipment"

Think of the children. Why do you hate America? If it keeps us safer I'm all for it.

I've had a ringside seat Inside the Beltway on policy development ever since 9/11, and I've never been more concerned for the future of our free society than I am today.

For the first few years after 9/11, we were all on a mission to make sure the loopholes in our legal, regulatory and operational structure could not be easily pierced. For those first few years, we collectively acted in good faith as we tried to balance the need to provide better security with the Constitution. It is a little known fact (known only inside DOJ, in fact) that when one post 9/11 proposal was sent to the AG, Ashcroft rejected it, saying, I told you to be creative, but within what the Constitution allows.

Somehow, around 2007-8, we started to lose focus, and I'm not sure why. The only thing I can put my finger on is that was about the same time that the DHS HQ structure reached critical mass, along with their budget. Congress was throwing money at them, and they were hiring permanent staff and contractors by the bushel, and all of that money had to produce something. Starting in 2007, and continuing onto today, the DHS leviathan churns out policy proposal after policy proposal. Most of them are harmless, but many of them are misguided "WE MUST DO SOMETHING ABOUT THE _____ THREAT OR PEOPLE WILL DIE" variety. The rest of us in the interagency push back, but frankly, we're on the defensive. I routinely attend meetings at the EEOB where DHS will send a half dozen people to harangue us on the issue du jour, leaving the rest of us who staff meetings with but one or two people to fight back.

Not everyone inside DHS is a security fanatic, but there is no lonelier person in Washington than a DHS employee who tries to remind his/her colleagues that there is this small item called the Constitution to consider.

Roger Cohen, writing in the NYT said it best.

Is it because DHS is unmoored? I know law enforcement and the courts are tethered together.

Tidbits like this have helped to rebuild my respect for Ashcroft, I'll admit I never liked the man (Remember that he lost against a dead man in 2000?). But a little bit of Gonzales went a long way towards showing how relatively moderate and well intentioned Ashcroft actually was by comparison.

Sadly, this is probably why he ended up getting replaced.

That is a good point, and probably explains a lot of the cultural problem within DHS. They aren't answerable to anyone.

If you recall, Ashcroft was the first Bush Cabinet member to be asked to leave, and his refusal to kowtow to the White House - and Cheney in particular - played a significant part in his departure.