Two Years On, the TSA Is Still Not Subject to Law

Two years ago tomorrow, the Transportation Security Administration stopped accepting comments on its proposal to use “Advanced Imaging Technology” for primary screening at airports. The end of the comment period on nude body scanning would ordinarily promise the issuance of a final rule that incorporates knowledge gained by hearing from the public. But this is no ordinary rulemaking. This is an agency that does not follow the law.

It was almost four years ago that the U.S. Court of Appeals for the D.C. Circuit ordered TSA to do a notice-and-comment rulemaking on its nude body scanning policy. Few rules “impose [as] directly and significantly upon so many members of the public,” the court said in ordering the agency to “promptly” publish its policy, take comments, and consider them in formalizing its rules.

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, 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.

Having grudgingly issued a hopelessly insufficient proposed rule, the TSA is now stalling further by failing to finalize its rule. This is in part because final rules are subject to legal challenge. The TSA can be shown in court to have utterly failed to follow the law, much less to have produced a policy that addresses genuine threats in a cost-effective way. The TSA is gaming the regulatory process and skirting the law so that it can continue to act arbitrarily and capriciously toward air travelers and their safety.

Time heals all wounds, so perhaps the D.C. Circuit accepts that the TSA has de facto power to overrule its decisions. The offense to American travelers is renewed every day, though, when we are subjected to a transportation security system that is both highly invasive and that failed 95% of the time in recent tests.