The Effort to Bring TSA Under Law

Four years ago, the U.S. Court of Appeals for the D.C. Circuit ordered the U.S. Department of Homeland Security to consider the public’s input on its policy of using strip-search machines for primary screening at our nation’s airports. The TSA had “advanced no justification for having failed to conduct a notice-and-comment rulemaking,” the court found. It ordered the agency to “promptly” proceed in a manner consistent with its opinion.

Over the next 20 months, the TSA produced a short, vague paragraph that did nothing to detail the rights of the public and what travelers can expect when they go to the airport. At the time, I called the proposed rule “contemptuous,” because the agency flouted the spirit of the court’s order. In our comment on the proposed rule, Cato senior fellow John Mueller, Mark G. Stewart from the University of Newcastle in Australia, and I took the TSA to task a number of ways.

The comment period on that proposal closed more than two years ago, but the TSA has still not proceeded to finalizing its rule. Continuing the effort to bring the TSA under the rule of law—and into the world of common sense—the Competitive Enterprise Institute filed suit against TSA yesterday, asking the court to require the agency to finalize its strip-search machine rule within 90 days.

Once the rule is finalized, it can be challenged in court under the Administrative Procedure Act’s “arbitrary and capricious” standard. This will be an important step toward bringing the TSA to heel. The D.C. Circuit, which is very familiar with health and safety regulation in which lives are at stake may recognize that the Department of Homeland Security does none of the work that other agencies do to cost-effectively protect life and health. The resulting waste of money and loss of privacy for travelers are not costs the American people should have to pay. Given the strip-search machine program’s results—failure 95% of the time in recent tests—a reviewing court may recognize that the TSA is acting incoherently.

Having the TSA under law in this case will pave the way for bringing other TSA policies within the law. Slow going it is, but the strategy I outlined four years ago is continuing to play out.

A better alternative to this time-consuming process, of course, would be for Congress to restore responsibility for air security to airlines and airports, which can do better than any federal agency at balancing safety and security, cost-control, privacy, and customer service. Speaking of long times passing, it’s now been a decade that I’ve been arguing for that very policy. This Reason piece, a debate with Bob Poole from March 2005, has stood the test of time, I think.