It took the Transportation Security Administration 20 months to comply with a D.C. Circuit Court of Appeals order requiring it to issue a justification for its policy of using strip-search machines for primary screening at airports and to begin taking comments from the public.

In that time, it came up with a 53-page (double-spaced) notice of proposed rulemaking. That’s 2.65 double-spaced pages per month.

This may be the most carefully written rulemaking document in history. We’ll be discussing it next week at an event entitled: “Travel Surveillance, Traveler Intrusion.” Register now!

The TSA’s strip-search machine notice will be published in the Federal Register tomorrow, and the public will have 90 days to comment. The law requires the agency to consider those public comments before it finalizes its policies. If the comments reveal the TSA’s policies to be arbitrary or capricious, the policies can be struck down.

But what is there to comment on? The TSA’s brief document defends a hopelessly vague policy statement instead of the articulation that the court asked for. And as to the policy we all know it’s implementing, TSA hides behind the skirts of government secrecy.

When the court found that the TSA was supposed to take comment from the public, it wanted a clearer articulation of what rules apply at the airport. The court’s ruling itself devoted several paragraphs to the policy and how it affects American travelers.

[T]he TSA decided early in 2010 to use the scanners everywhere for primary screening. By the end of that year the TSA was operating 486 scanners at 78 airports; it plans to add 500 more scanners before the end of this year.

No passenger is ever required to submit to an AIT scan. Signs at the security checkpoint notify passengers they may opt instead for a patdown, which the TSA claims is the only effective alternative method of screening passengers. A passenger who does not want to pass through an AIT scanner may ask that the patdown be performed by an officer of the same sex and in private. Many passengers nonetheless remain unaware of this right, and some who have exercised the right have complained that the resulting patdown was unnecessarily aggressive.

The court wanted a rulemaking on this policy. In the jargon of administrative procedure, the court demanded a “legislative rule,” something that reasonably details the rights of the public and what travelers can expect when they go to the airport.

Instead, the TSA has produced a perfectly vague policy statement that conveys nothing about what law applies at the airport. In the regulations that cover screening and inspection, the TSA simply wants to add:

(d) The screening and inspection described in (a) may include the use of advanced imaging technology. For purposes of this section, advanced imaging technology is defined as screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened.

Not a word about the use of strip-search machines as primary screening. Nothing about travelers’ options. Nothing about signage. Nothing about the procedures for opt-outs. Nothing about what a person can do if they have a complaint. It’s not a regulation. It’s a restatement of “we do what we want.”

That’s contemptuous of the court’s order requiring TSA to inform the public, take comments, and consider those comments in formulating a final rule. TSA is doing everything it can to make sure that the airport is a constitution-free zone, and this time it’s lifting a middle finger to the D.C. Circuit Court of Appeals.

It is possible, even in a relatively short document, to articulate how billions of dollars spent on exposing the bodies of millions of law-abiding Americans makes the country better off. What’s amazing about the document is how little it says. TSA doesn’t even try to justify its strip-search machine policy. Instead, it plays the govenment secrecy trump card.

Here is everything TSA says about how strip-search machines (or “AIT” for “advanced imaging technology”) make air travel safer:

[R]isk reduction analysis shows that the chance of a successful terrorist attack on aviation targets generally decreases as TSA deploys AIT. However, the results of TSA’s risk-reduction analysis are classified.

Balderdash.

Under Executive Order 135256, classification is permitted if “disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism.”

“If there is significant doubt about the need to classify information,” the order continues, “it shall not be classified.”

Assessing the costs and benefits of TSA’s policies cannot possibly result in damage to national security. The reason I know this? It’s already been done, publicly, by Mark G. Stewart of the University of Newcastle, Australia, and John Mueller of the Ohio State University. They published their findings in the Journal of Homeland Security and Emergency Management in 2011, and national security is none the worse.

Walking through how well policies and technologies produce security can be done without revealing any intelligence about threats, and it can be done without revealing vulnerabilities in the policy and technology. But the TSA is playing the secrecy trump card, hoping that a gullible and fearful public will simply accept their authority.

I anticipated that the agency might try this tactic when the original order to engage in a public rulemaking came down in mid-2011. In a Cato blog post, I wrote:

Watch in the rulemaking for the TSA to obfuscate, particularly in the area of threat, using claims to secrecy. “We can’t reveal what we know,” goes the argument. “You’ll have to accept our generalizations about the threat being ‘substantial,’ ‘ever-changing,’ and ‘growing.’” It’s an appeal to authority that works with much of the American public, but it is not one to which courts—a co-equal branch of the government—should so easily succumb.

If it sees it as necessary, the TSA should publish its methodology for assessing threats, then create a secret annex to the rulemaking record for court review containing the current state of threat under that methodology, and how the threat environment at the present time compares to threat over a relevant part of the recent past. A document that contains anecdotal evidence of threat is not a threat methodology. Only a way of thinking about threat that can be (and is) methodically applied over time is a methodology.

The TSA published nothing, and it hopes to get past the public and the courts with that.

Its inappropriate and undeniably overbroad use of secrecy will be in our comments to the agency and the legal appeal that will almost certainly follow.

Crucially, agency actions like this are subject to court review. When the TSA finalizes its rules, a court will “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Sooner or later, we’ll talk about whether TSA followed the court’s order, the lawfulness of wrapping its decision-making in secrecy, and the arbitrary nature of a policy that has no public justification.

On Tuesday and Wednesday the Supreme Court will hear oral argument in Hollingsworth v. Perry, the challenge to California’s Proposition 8, and U.S. v. Windsor, the challenge to Section 3 (federal definition of marriage) of the Defense of Marriage Act. A Ninth Circuit panel, with liberal Judge Stephen Reinhardt writing, had invalidated Prop 8 on relatively narrow grounds; a Second Circuit panel, with conservative Chief Judge Dennis Jacobs writing, had invalidated Section 3 of DOMA on Equal Protection grounds.

The range of possible outcomes for the two cases is quite wide. At one end, the Court could reverse both appellate decisions, restoring the California ban on gay marriage and confirming the legal definition of marriage as opposite-sex-only for purposes of federal programs such as taxation (at issue in Windsor) and federal employee pensions. At the other end, the Court could apply Equal Protection Clause principles to declare that marriage licenses must be available in all states to all otherwise qualified couples regardless of sex. In between are many intermediate outcomes. Both cases, especially Perry, raise issues of litigant standing that might enable or require the Court to set aside the ultimate merits and render a decision with little or no precedential impact on future cases.

The Cato Institute has filed amicus briefs in both cases. In its active amicus program Cato has long taken a broad view of Equal Protection Clause protections, and in this case joined with the Constitutional Accountability Center to file briefs in Perry and Windsor urging that marriage be made available without distinction of sex on Equal Protection grounds. (It’s an “odd-couple” alliance in that CAC is known for its progressive view of the Constitution and regularly winds up on the opposite side from Cato on other high court issues such as ObamaCare and campaign finance.) Ilya Shapiro discusses Windsor and Perry; Constitutional Law Prof Blog provides an analysis of the Cato/CAC Windsor brief. The Daily Press (Hampton Roads, Va.) cites our arguments in its new editorial.

The Heritage Foundation, which of late has crusaded against same-sex marriage on both legal and substantive grounds, collects and summarizes some of the many briefs filed by those on its side of the controversy.

Quite a few scholars and public commentators have invoked federalism and called attention to possible resolutions that defer to the various states. A “federalism scholars’ brief” in DOMA (described here by Ilya Shapiro) signed by, among others, four law professors who blog at Volokh Conspiracy (Jonathan Adler, Dale Carpenter, Randy Barnett, and Ilya Somin) supports striking down section 3 of DOMA not directly on Equal Protection grounds, but because of its attempt to inject federal policy into a field (domestic relations) historically occupied by state law. [More: Jonathan Adler exchange with Nicholas Rosenkranz and Ed Whelan.]

Separately, in a Wall Street Journal piece, widely respected Stanford law professor and former judge Michael McConnell writes that the pair of cases “offers the justices a golden opportunity to resolve these cases without setting a precedent either way, and to reaffirm the ideal of democratic, decentralized decision-making.” To do that, he suggested the Court might want to dodge Perry on standing grounds while upholding Windsor on the ground “that DOMA improperly intrudes on the reserved powers of the states.” Syndicated columnist George Will, who is critical of the attempt to invoke social science as a reason to overturn Prop 8, calls DOMA an intrusion on traditional state law and suggests that “a jurisprudence true to conservative principles, properly understood” would get rid of it.

The Federalist Society has a symposium with two defenders of Prop 8/DOMA (John Eastman and Nelson Lund) and two critics (Dale Carpenter and Ilya Shapiro). Libertarian law professor Richard Epstein finds originalism at odds with liberty in the cases. Ilya Somin, tracking Georgetown’s Marty Lederman, outlines the Court’s options in the Prop 8 case.

Some of the amicus briefs on the traditionalist side invoke the “gay marriage is bad for children” argument, which I’ve contested before. Recent revelations confirm suspicions that in the rush to publication of the extremely controversial Mark Regnerus study, often misrepresented as indicating bad outcomes from same-sex parenting, use in Supreme Court argumentation was one consideration.

In the coming week I and others at Cato will be appearing at public events in Washington, D.C., headlined by a Wednesday event with Ilya Shapiro, Ken Mehlman and Evan Wolfson (register here), as well as broadcast commentary on the unfolding story.  

[cross-posted from Overlawyered, where it ran in slightly different form]

The Supreme Court issued a ruling yesterday on a consolidated pair of cases that looked initially like a win for property rights. (Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center.) Interpreting Environmental Protection Agency authority, the Court held 7-1, with Justice Kennedy writing for the Court, Justice Scalia concurring in part and dissenting in part, and Justice Breyer recusing himself, that logging companies and Oregon forestry officials did not have to obtain EPA permits for storm-water runoff from logging roads, contrary to what the NEDC had argued and the Ninth Circuit below had held.

As so often happens, however, the underlying issues were far more complicated and important, involving basic administrative law questions and fundamental separation-of-powers principles. In particular, the question Scalia pressed was this: Should a court give deference—known as Auer deference—to an administrative agency’s interpretation of its own regulations? Bad enough that courts give excessive Chevron deference, as it’s known, to agencies’ interpretations of congressional statutes when agencies write and enforce regulations pursuant to the statutes. When agencies, in addition, get not only to write but to interpret their own regulations, it’s a prescription for mischief, as Scalia made clear.

As a general matter, we at Cato have long argued that Congress delegates far too much of its legislative authority to executive branch agencies. After all, the very first sentence of Article I of the Constitution reads: “All legislative Powers herein granted shall be vested in a Congress ….” (emphasis added) As a practical matter, Congress has always had to delegate some rule-making authority to the executive branch. With the vast expansion of Congress’s legislative powers during the New Deal, however, that delegation has grown exponentially, along with the hundreds of agencies Congress has since created. Today, most of the law we live under, except at the broadest level, is written not by Congress but by those agencies. Do we need any better example than Obamacare? Over 2,000 pages long, that Act pales in comparison to the volumes of regulations now being written in the agencies to give it effect. All of which raises the question, what’s the role of the courts in all of this?

The substantive question here was whether stormwater runoff from two logging roads violated regulations the EPA had written pursuant to the Clean Water Act. Thus, although the environmental plaintiffs lost, that does not mean, as might be thought, that the decision was a win for proponents of property rights. This was a question of whether logging enterprises were using their property in a way that protected the public’s property interests in clean water. That’s what the regulations were written to ensure. The Court had before it, therefore, a question of regulatory interpretation and application in light of the facts. Without going into the complex statutory and regulatory parsing that both the Court and Scalia engaged in—see the decision to work your way through that—suffice it to say, again, that Kennedy simply deferred to EPA’s interpretation of its own regulation: Auer deference, which accepts an agency’s reading of its own regulation unless it is “plainly erroneous or inconsistent with the regulation.” By contrast, carefully invoking several interpretive canons, Scalia argued that in so deferring the Court had upheld EPA’s unnatural reading of its regulation. He would have found for the NEDC. (So much for Scalia the result-oriented conservative.)

Although I believe Scalia had indeed the “more natural” reading of the regulation, the larger, constitutional issue is the more interesting one, namely, whether such deference as the Court had given is consistent with the separation of powers, and on this, Scalia is at his best. Addressing the contention that the agency possesses special expertise in administering its complex and highly technical regulatory program, he answers:

That is true enough, and it leads to the conclusion that agencies and not courts should make regulations. But it has nothing to do with who should interpret regulations…. Making regulatory programs effective is the purpose of rulemaking, in which the agency uses its “special expertise” to formulate the best rule. But the purpose of interpretation is to determine the fair meaning of the rule—to “say what the law is,” Marbury v. Madison. Not to make policy, but to determine what the law is.

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