Rights of the Government to Impose Air Security Measures

In response to my piece, Common Sense Offends ACLU, addressing the ACLU’s opposition towards the behavioral screening procedures imposed by the TSA in certain airports, commenter John Newman brought up some questions. John believes that federalizing aviation security matters is Unconstitutional. He advances two particular arguments.

His first argument discusses the Constitution’s “fundamental right to travel”. It mainly consists of picking quotes from Supreme Court cases upholding the fundamental right of travel. I will first mention that the fundamental right of travel is not once mentioned in the Constitution, but may be built from penumbras emanating from some such or the like. But that’s not the crux of the argument. See the following quotes from John’s own selections of court cases (emphasis added below in italics):

require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules or regulations which unreasonably burden or restrict this movement

‘any classification which serves to penalize the exercise of that right unless shown to be necessary to promote a compelling governmental interest, is unconstitutional’

The right to travel, to go from place to place as the means of transportation permit, is a natural right subject to the rights of others and to reasonable regulation under law

fundamental personal right that can be impinged only if to do so is necessary to promote a compelling governmental interest

a ‘fundamental’ one, requiring the showing of a ‘compelling state or local interest to warrant its limitation

At the minimum, governmental restrictions upon freedom to travel are to be weighed against the necessity advanced to justify them, and a restriction that burdens the right to travel ‘too broadly and indiscriminately’ cannot be sustained

is basically the right to travel unrestricted by unreasonable government interference or regulation

Note the words used, for they are important. “Compelling government interest.” “Unreasonable burden.” These are phrases which, in Constitutional jurisprudence, have very specific meanings. Another particular phrase that must be added is “strict scrutiny”. A Congressional Research Service paper on Constitutional objections to the showing of ID on airline flights (warning: pdf) covers the defense of the “right to travel” objection quite well:

The Court has declared that the constitutional right to travel consists of three different components: first, it protects the right of a citizen of one state to enter and to leave another state; second, it protects the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state; and third, for those travelers who elect to become permanent residents, it protects the right to be treated like other citizens of that state. In the context of transportation security, however, only the first prong of the right to travel appears to be relevant.

Consistent with its status as a fundamental right is the requirement that the government’s action satisfy the constitutional standard of review often referred to as strict scrutiny, or heightened scrutiny. Under strict scrutiny the government must provide a compelling state interest for the burden and show that the means utilized are narrowly tailored to the achievement of the goal or, phrased another way, the least restrictive means available.

Given that the airlines are seemingly authorized to refuse service to anyone who fails to present proper identification, it appears that a strong argument can be made that there is an additional burden imposed on citizens who wish to travel by airplane. Thus, the inquiry should focus on the standard of review that should be applied. It appears difficult to argue that passenger safety and transportation facility security are something other than compelling governmental interests. Thus, it seems that, regardless of which standard of review is applied, the government may be in a strong position to argue that not only are the current security restrictions justifiable, but also that their burden on the right to travel is minimal and given the present conditions entirely reasonable.

From the look of it, to claim that the requirement that one shows ID in order to engage in air travel is unconstitutional appears to be– at the least– unsupported by Constitutional precedent. According to the court cases cited, regulations can legitimately be placed upon travel if there is a compelling state interest to uphold. One would think that stopping passengers from blowing up planes or hijacking them and flying them into buildings would meet even the “strict scrutiny” test.

So we must move on to John’s second argument, which is much shorter and yet at the same time, more difficult to answer. He asks where it is enumerated that airline security is a federal matter to begin with?

If the airlines want to impose security practises and procedures, I have no problem with that. Where is it enumerated in the Constitution that it is a matter for the federal government?

There are a lot of ways to answer this question. The first answer, although some creativity can change it, is that it simply isn’t in there. Article I, Section 8 has no provisions for regulation of airline security, nor does it ever claim that police power is the realm of the federal government. But two particular provisions might at least be able to be shown to have relevance:

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

This is, of course, a stretch up there with those who might envision a “living Constitution”. But if we’re going to allow a “fundamental right to travel”, I’m asking for a little bit of leeway. As I said above, nothing in the Constitution gives the federal government police powers over the states. But here’s where you can find a bit of an AHA! moment. The bits in Article I, Section 8 regarding Piracies and Felonies on the High Seas are quite analogous to those of hijackings and bombings of commercial aircraft. Both involve non-government-owned vessels (i.e. the government did protect private merchant ships from piracy); and both involve territory separate from that of land under the jurisdiction of the several states. When it comes to international waters and spaces, laws tend to become blurred and confusing which is why legal matters under maritime law should be taken up with lawyers experienced in this field.

Second, the whole bit about “repel invasions”. We are in a war against foreign and quite possibly partly domestic enemies who will use commercial airlines to attack our nation. I don’t like using the “national security” defense in most circumstances, but there is a certain point at which one might allow that protecting our buildings and populace from terrorists who will (and have) hijack aircraft with the purpose of using them as guided missiles to attack civilian targets is a reason for which we might want to take on government-ordained security procedures.

Last, John had suggested that perhaps if the airlines wanted to enact security procedures, that might be enough for him (although I don’t understand how he does not similarly support private hiring and firing practices). And if the airlines had secure cockpits and could not be hijacked, I might agree. But once the airplane becomes a guided missile filled with fuel aimed at a building, the equation changes. Just as states and municipalities have laws regarding drunk driving or speeding, which can turn an automobile into a 3,000 lb missile, the feds have airline security regulations to keep an airplane from doing the same thing. The only thing that gives the feds jurisdiction, though, is that the particular exigencies of airline travel require it.

Simply put, there are a lot of things about federal power that highly disturb me. This is one of the few that does not. I’m not one to suggest that we should federalize the airport screeners, following in Daschle’s footsteps; because I suspect the procurement of security is better handled by the private sector, while the requirements of security are best handled by the government.

Either way, John, I thank you for the good-natured and challenging debate. As always, when debating a formidable opponent such as yourself, I only learn more and improve my own understanding in the process. And, of course, I’m sure this won’t quite be the end of it :-)

(cross-posted at The Unrepentant Individual)

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  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    Actually, a couple of things to think about.

    1. None of the hijacking in recent times, including the 9/11 hijackings, would be prevented by checking for proper ID that matches the name on the boarding pass. In other words, the first thing terrorists do is procure legal identification so that they can move freely within our society.

    2. It is now very nearly impossible to hijack an airplane between the combination of security doors on the cockpits, armed pilots and air marshalls. Not to mention that passengers are fully aware of the potential dangers now and likely will defend the airplane themselves.

    Given those two points, it no longer seems to be a “compelling government interest” to require showing ID to get on an airplane.

  • http://www.lucysfrugalliving.blogspot.com/ Lucy Stern

    I don’t think the founding fathers knew that we would have airplanes flying around this nation. I wonder if they were alive today, if they would get on an airplane without some sort of inspection?

  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    A couple of things to think about from the perspectives of “what would the founding fathers do”.

    1. Most of them were opposed to government intervention and regulation, even when it made things “safer” or “easier” for them. See the writings of Patrick Henry, Benjamin Franklin, Thomas Paine, and Thomas Jefferson, as starting points.

    2. The Founding Fathers lived in a time of dramatic social and technological change. The industrial revolution was underway in England and the United States by the time the Constitution was ratified. They were fairly deliberate in writing a document that dealt with people and government rather than technology. There is nothing in the document that is technology dependent (i.e. individual liberties don’t change because of new technology). If something has changed the situation so much that the Constitution no longer addresses the issue, then the document should be amended, not re-interpreted.

    In any case, as someone with a fairly extensive background in security, when I’m dealing with a proposed security control (like requiring ID to get on an airplane), I always want to know:

    1. What risk is being addressed by the control?
    2. Will the control reduce the level of risk?
    3. Can you demonstrate a benefit that is greater than the cost of the control?
    4. What are the legal ramifications of the control?

    Showing ID to enter the controlled passenger terminals does not appear to reduce the level of risk measurably. Even worse, it focuses on the wrong areas of risk, in my opinion. The last time I was in an airport I observed two, or potentially three, significant security risks that had nothing to do with security controls related to passengers. Between X-Rays, bag inspections, air marshalls, and secured cockpit doors, I believe that the risk of a passenger hijacking an airplane is almost zero (without any need to demand identification). But the risk of a major attack in the airport terminal by non-passengers, bombing of an airplane, etc. is quite a bit more present from what I’ve seen.

    So, not only does demanding your ID have little, if any, security value, but it also is probably not constitutional based on what the constitution says (as opposed to what we think it ought to say). That’s a pretty strong double whammy against it.

  • http://unrepentantindividual.com/ Brad Warbiany

    I’ll grant that showing ID is not the important part, but that requiring a search is. Even with armed pilots and air marshals, if a terrorist gets on board with a gun and knows how to use it, they would be in good shape to take the plane over. I’ve often said that an airplane will never be hijacked in this country again, because the citizens have been through 9/11 and would go Flight 93 on those terrorists. But a firearm completely changes the situation.

    The original question was that of behavioral screening, which I said was a much better idea for security than simply using random screening, not of the requirement of showing ID. My apologies for not being entirely clear. I don’t think it should be necessary to show ID, but I think there is a case to be made that behavioral screening or searching of bags/people is Constitutional.

  • John Newman

    Brad, as I pointed out on your blog, where does this behavioral screening end. At airports, at bus terminals, train stations, on the interstate system.

  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    Brad, I would have no objection, whatsoever, to a state government mandating all of this within their own borders, at their airports. So long as the citizens of that state had granted the government the authority to take those actions. I would have objection, on a constitutional basis, to the Federal government taking such action based upon an amendment to the Constitution.

    But, as Patri, over at Catallarchy, points out, this is a war of ideas and memes. Creating a police state, even a mild one, is hardly the way to win the war of ideas related to freedom and liberty.

  • John Newman

    Eric & Brad, I think I could make a convincing case to any jury that we already live in a not so mild police state.

  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    John, while I agree we live in a state where the government has far too much police power, I don’t agree that it is anything but mild. For true police states I would refer you to the Soviet Union, Rumania, Ba’athist Iraq, Saudi Arabia, Nazi Germany, Cuba, and a multitude of others were you actually were arrested in the middle of the night, taken to basements under the secret police headquarters and tortured, then given a secret trial and sent to a concentration camp or executed without anyone ever knowing. While we yammer on and on about such things here, the truth is that they really don’t happen, and when they do the truth comes out. Much like the NSA telephone tapping that is causing the Bush administration so much political distress right now.

    In fact, the USA under Lincoln in the Civil War, Wilson in WWI and Roosevelt in WWII was much more of a police state than we are now. However, I wouldn’t disagree that the US Federal government is a mild (very mild) police state. Which does not mean, by the way, that I find it acceptable, either morally or consequentially.

  • Brock

    Set aside government involvement for a moment. Air travel is purely voluntary. If private companies required a thorough search of your belongings and matched your behavior with those contents, method of ticket purchase, travel history, credit history, etc. as a condition of access to the terminal and airplanes, I would have a hard time swallowing an argument preventing them from doing so. Every bar, casino, and department store in the country engages in some combination of these things in determining who to serve and who represents a security risk. If one did not want that level of scrutiny, he could drive, take a train, fly himself, or charter a private plane.

    Now, add government back into the picture. The choices and conditions of access remain the same, so I still don’t have a complaint with highly invasive security measures. Until, that is, I consider that the government has law enforcement abilities that the private companies would not have. Even though air travel is still purely voluntary, the conditions of access are unacceptable because that is giving a law enforcement agency information they should not have without a warrant.

    Between that stumbling block and the fundamental wrongness of public enterprises such as the TSA and government airport ownership, I have to conclude that the problem is not the reasonableness or unreasonableness of the security measures, it’s the government operation of what should be a purely private enterprise.

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  • John Newman

    Eric, we can disagree about the degree of totalitarianism we live under, but I hope we could agree that that noose is not gonna loosen but tighten.

    You state that we were in more of a police state under Lincoln, Wilson, and FDR than we are now. My question then is, what were the police state tactics they used that are not now in use?

  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    Lincoln and Roosevelt incarcerated significant numbers of American citizens without benefit of habeas corpus and without the Congress suspending habeas corpus. Every citizen incarcerated by this administration as a result of the war has had the benefit of full civil or military law, unlike Japanese-Americans or the political leaders of Maryland and New York. Lincoln, Roosevelt and Wilson did far more spying on US citizens than Bush & Co have ever dreamt of doing, and most of it, again, without Congressional authorization. The US, under both Wilson and FDR, was completely mobilized for war, with strict rationing, government regulation of the means of production, government control of travel far beyond anything that is bothering you today (i.e. you could not take a train from Los Angeles to New York without government authorization in WWII).

  • John Newman

    Echelon, Carnivore, Bank Secrecy Act, Fincen, etc., etc., etc. When I buy cigarettes on the internet it is Federal Law that the state I live in must be notified. Everytime I go from Harlingen TX, to San Antonio I am stopped by federal agents, and can be searched, interrogated, detained, or held for no reason.Jose Padilla was held for how many years? Gitmo, Abu ghrab and all the other places we don’t know about are secretly holding and torturing people which is not legal, moral, or ethical. Schiff’s tax book was banned by a judge that never even read it. Searches, ID checks to fly within the country or even within a state. No Fly lists. You tell me what the founding fathers would call this ‘state.’

  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    John, none of this is arguing that these things are good, or even tolerable. But, things have been worse. There’s a difference between the potential for being detained when you travel and having to get military permission to travel, as you did in WWII. Or, having the entire political structure of a city put in prison on the President’s orders, a writ of habeas corpus denied, and martial law (which is not constitutional) declared. Yes, it has been worse in this country, and the powers have been given up and/or taken away. Life was not nirvana before 9/11 and suddenly the evil BushCo came along and stole all of our freedoms and turned our country into Amerika.

    Many of the things you are complaining about were happening long before 9/11. Many much worse things happened during other wars and time periods. If you think this is bad, you really, really ought to consider how hundreds of thousands of Americans felt in 1942 when they were rounded up and interred because of their ethnicity. Or how millions of Americans felt as they were kept in a state of chattel slavery for their entire lives.

    Or, perhaps you ought to consider the incredibly dramatic lack of freedom brought on by conscription, by centralized industrial planning. Anyone holding a job critical to the war effort was forbidden, by law, from leaving their job. Civilians were required, by law, to take jobs, whether they wanted to, or not. Mail was opened, read and censored during WWI and WWII. Phone lines were tapped, people of German descent were investigated by the Secret Service, the FBI, the OSS and military intelligence during both WWI and II.

    The United States was nearly as fascist during the Depression and WWII as our enemies were. Our President actively modelled the New Deal after Fascist Italy, and said so publicly.

    Let’s try this again. Yes, there are problems right now that challenge liberty. Yes, our government is, and has been, doing things that are unconstitutional. But, to act as if this is somehow something new, and that it only came about since 9/11, is silly. Most of what the TSA is doing was law on the books prior to 9/11. That doesn’t mean I agree with it or think it is right, or necessary. But, it’s not new. And it isn’t nearly as bad as the situations citizens faced during earlier periods of our history.

  • John Newman

    It seems we are looking at this from different perspectives. I see the results of the Civil War as the beginning of a centralized Federal government, and a loss of states rights which has only gotten worse since that time. It was also the beginning of corporate welfare which is still flourishing today. I see Wilson as the beginning of centralized banking ,income tax, and abandoning our neutrality. FDR gave us social programs which now consume us, and the curse of the nation, the Administrative Procedure Act which allows government agencies the power of the three branches of government to control our lives and businesses.

    When the Bill of Rights are no longer applicable to the citizen, in my opinion that is a police state compared to Constitutional Republic. You can put another name on it, but that is what I call it. So, I’ll ask you again, what would Jefferson call it?

  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    I was going to give you a demonstration of your historical inaccuracies and where you are wrong, while pointing out to you that there are problems today. But, given your comments on my personal blog, it’s pretty pointless to discuss this with you. Your understanding of what a police state is, what the US has been in the past, what it is now, and where it is headed, is totally skewed.

    Having to defend the government at all leaves a foul taste in my mouth, everything considered. But agreeing with your wildly inaccurate characterization of the United States would be intellectually dishonest.

  • John Newman

    Mission accomplished if you have a bad taste in your mouth. I would be interested in hearing my historical inaccuracies if you care to take the time since I am a history buff. And for the record, I didn’t come here to be argumentative, but to give another opinion.

  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    Historical inaccuracies

    1. Centralized banking began in 1791 with the First Bank of the United States, chartered by the Congress. Alexander Hamilton argued that the Federal Government had all powers not denied it by the Constitution under the “necessary and proper” clause. John Marshall, Chief Justice, wrote a unanimous decision in the 1830’s upholding the power of the Federal government to run a central bank under the “necessary and proper” clause.

    2. States do not have rights, nor do any other government entities. States have powers. The Federal Government has usurped the powers of the state governments, but they have not lost any rights. Arguing that states have lost rights indicates a view that is inconsistent with actual classic liberal theory.

    3. You have insisted that the US Government has not given up powers, once it acquires them. This is factually incorrect. In fact, the worst police powers were given up, including central industrial planning, secret police powers (trust me, the NSA and FBI today have very limited power compared to the OSS and FBI during WWII and the Secret Service and military intelligence during WWI), enforced civilian jobs, inabiltiy to negotiate pay and benefits with employers, inability to travel by train, plane or ship without government authorization, and more. Today, our government no longer holds, or claims to hold, these powers.

    4. Holding significant portions of the American population without a writ of habeas corpus, as occurred in the Civil War and WWII. If you think Gitmo is bad, you ought to take a look at Andersonville and the many Union prison camps. The Japanese internment camps were no joke either. And there, hundreds of thousands of American citizens were imprisoned by the Federal government for an indefinite period of time, without habeas corpus, a trial or any other sort of due process. There is a vast difference between a few people held that way while a massive debate rages over whether it is legal, or not and hundreds of thousands held that way with the rest of the population backing it.

    5. Slavery. Both the Federal and State governments of the United States recognized chattel slavery as legal, and tens of millions were held in a state of involuntary servitude for their entire life, as were their children. This is definitely no longer the case and the government no longer allows chattel slavery.

    I agree that other powers have been usurped by the US Government and not given up. I agree that many things are happening today that, according to a strict interpretation, are not constitutional. You will see this theme throughout my writing here, and on Eric’s Grumbles. What I will not agree with, because you are flat out wrong, is that we are a Police State, or that our government, today, is worse than it was in the past. Historically, it has been much worse in this country than now. The abuses of the Clinton administration at Waco and Ruby Ridge, for a modern example, or the coverup of Islamic terrorist involvement in the Oklahoma City bombings, for another. The entirety of the New Deal and WWII, for yet another. We were, in fact, a fascist country during those years, without any doubt. FDR actively modelled his programs after Mussolini’s, and publicly said so, until it became a problem because he was on “the other side”.

    Your points are good, in some cases, but your understanding of the reality of life in the US compared to life in a real police state is wildly off target. The truth is, you don’t walk the street in fear that secret police will toss you in an unmarked car, whisk you off to a secret location, torture you, hold a secret trial and then either hold you in a concentration camp or execute you. You don’t worry that a government official will pick your daughter up off the street and rape her and you will be killed if you try to complain. One out of three of your family and neighbors are not secret police informers. You are not put in prison for speaking out against the politics and policies of the President.

    You do not live in a police state and saying that you do is over the top rhetoric that does not help to make the case that there are problems that need fixing and detract from liberty. I disagree with the major points that Brad makes in this article, but that doesn’t mean that I agree with you either.

    If we truly lived in a police state, this blog would be censored. Consider what is happening with blogs in China, or recently to Iranian and Egyptian bloggers. Some perspective would be helpful. You might spend some time reading what Michele posted on Eric’s Grumbles. Or, check out this post that I wrote about my personal experiences with totalitarian societies.

  • http://bwrmontag.blogspot.com B.W. Richardson

    Eric: “Every citizen incarcerated by this administration as a result of the war has had the benefit of full civil or military law, unlike Japanese-Americans or the political leaders of Maryland and New York.”

    Interesting word parsing there. Check the Bill of Rights and you’ll find no suggestion that the rights of the accused apply only to citizens. Change the word “citizen” in your statement to “person” and all of a sudden you’re dead wrong. Anyone who’s not horrified by Gitmo Bay and the secret prisons just isn’t thinking. We’re supposed to be the good guys, not the gulag operators and torturers.

    On the main subject, I just avoid flying because I don’t care to be jailed for objecting to an unreasonable search of my person and property, and I know most people have been brainwashed to believe they’ll be safer if they let someone mug them and browse through their belongings. Why insist on my freedom to travel unimpeded when the majority of people on board don’t want that freedom? Driving is much less stressful and more rewarding anyway. Of course I fear that my reluctance to put up a fight on this score will one day result in state-border checkpoints along the highways. I’ll cross that bridge when we get there.

  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    First, you are correct, and I’ve made the same argument, that the bill of rights applies to all individuals. My mistake. It was not intentional word parsing.

    Second, to the best of my knowledge, prisoners held at Gitmo are already subject to the Uniform Code of Military Justice, and other military regulations regarding holding prisoners. They are not subject to civil law, nor should they be. Prisoners of war can, and should, be held for the duration of the war. This is not unusual, nor out of the norm. Nor a violation of the Consitution. What is a violation of the Constitution is for the President to assume war powers without a declaration of war.

    Third, I don’t know enough about the alleged CIA secret prisons to comment knowledgeably. Nor do I think most of us do.

    I can’t avoid flying, unfortunately.

  • John Newman

    Seriously, thank you for taking the time and effort to respond. My loosey-goosey language certainly did nothing to clarify what I was trying to say. Let me respond to your points.

    1.I said central banking but meant the Federal Reserve System. You are correct about central banking. Care to talk about the evils of the FED?

    2.Again you are correct, states do not have rights. I was referring to the rights of the citizens of the states. What I actually meant is that the federal government coerces states to impose its dictates on the citizens of the state, thereby denying rights to those citizens.

    3.I am going to have to disagree with you on this one. The powers may not be the exact same powers, but the courts have increasingly given more power to law enforcement over the years. I would also argue that you do need governmental authorization to travel since you are screened and searched before you can travel and a now federalized TSA agent may detain you or stop you from taking a flight. I call that governmental authorization.

    4. My argument here is that if just one person is held, the justice system has failed and we are all vulnerable as evidenced by your example of the internment camps. How many Muslims were picked up on no charges after 9/11?

    5.Using Bovard’s term, “Freedom in Chains” is slavery. The examples of us working for the Master are more numerous than I care to get into now.

    You seem to resent my term police state in reference to this government. I do not mean that we are in a full-fledged (such as the examples you gave) police state, but that we are in the infancy stages of BECOMING a full-fledged police state. What are neighborhood watch programs, community-policing, and DARE programs other than spying and snitching on neighbors and family?

    I hope this is more clear and I apologize for my imprecise language and terminology earlier.

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  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    See my much longer and more detailed discussion in this post.