4 Reasons Why A TSA Mask Mandate Would Be Illegal

Masks are a simple, low cost way to limit spread of the novel coronavirus. It’s a shame that government leaders from Dr. Anthony Fauci, to the Surgeon General, to the CDC, lied about masks at the start of the pandemic so people wouldn’t go out and buy them, competing for scarce resources with government and hospitals.

We were told masks aren’t effective, so people didn’t wear them, which likely caused the virus to spread more than it would have. And when the studies came in on mask wearing, and experts changed their recommendations, people no longer trusted the experts. So we’re faced with mandates and threats over masks – when they’re a simple measure people can take to preserve their freedom to go out, to transact business, and not face government lock downs.

House Homeland Security Chair Bennie Thompson (D-MS) wrote to the TSA Administrator this week demanding the agency require people wear masks when going through security checkpoints.

[I]t is difficult to understand your hesitation to issue a national requirement for passenger masks to ensure that all frontline workers and passengers are equally protected across the aviation system.

Furthermore, the chairman continues that “even if some members of the public balk at such an order, TSA is no stranger to asking people to submit to unpleasant experiences. In other words, since the TSA already engages in invasive pat downs, it’s a natural extension for them to tell people to do other things too.

The only controversy surrounding masks is a dangerous political one manufactured by President Trump and his enablers. There is a clear consensus among public health officials that masks are effective in curbing the spread of COVID-19,” they wrote. “TSA employees routinely enforce a number of requirements that are unpopular with the public, such as conducting invasive pat-downs and confiscating liquids, which you and your predecessors have deemed necessary to protect passengers.

The letter concludes that “a mask requirement is extremely important,” and it’s hard to disagree. The appropriate measure for members of Congress to take then is to pass such a requirement – there are four reasons why the TSA doing it on their own today would be illegal.

  1. The TSA’s mission is aviation security, protecting commercial airlines against terrorists. There’s nothing in statute that makes them a public health agency.

  2. Congress would have to give TSA the authority to mandate masks. The House, recognizing this, actually passed legislation that would have required “each passenger and cabin crew member to wear a mask or protective face covering while onboard an aircraft of the air carrier” until the national emergency declaration for COVID-19 expires. That’s not something that can be required without legislation, but the legislation died in the Senate.

  3. The Chairman of the House Homeland Security Committee recognized the lack of authority for the TSA to impose temperature checks and the same argument applies, “I cannot find any law that gives TSA the authority to perform temperature checks” however the difference appears to be that masks are now an issue that the Democrat majority in the House can (justifiably) criticize the President and score political points. It’s the same Representative Bennie Thompson talking out of both sides of his mouth about TSA mandates.

  4. While TSA may have a history and penchant for making up rules for travelers seemingly on a whim, they’ve been required by courts to publish regulations outlining what screening processes are required, and those will have to comport with the agency’s statuatory mandate to protect air transportation from violent threats. The TSA is subject to the Administrative Procedures Act, passengers are ‘substantially affected’ by a mask rule, and the agency has not heard and considered comment on such a rule.

Airports can require masks in jurisdictions where local officials have required them, and likely as long as doing so doesn’t run afoul of local rules. The FAA has already stated that airlines will not violate any grant covenants if they do so.

And airlines can require that passengers wear masks, too. With Allegiant getting on board, every significant U.S. commercial airline does so.

But the TSA lacks the legal authority to require mask wearing, and any such requirement largely just duplicates the efforts of other mask requirements already in place.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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Comments

  1. If, starting today, 90% of the world’s population were to wear masks in public for 3 short weeks, this virus would be wiped off the face of the earth.

    Really, is it too much to ask?

  2. Regardless of the legality, does it not make sense to wear masks, lower the risk of infection, and get us out of this nightmare environment sooner; instead of wallowing in our own “filth” and extending this pandemic for even longer than necessary?

    When we get on a plane, we literally are putting our trust in the science behind the aircraft… using science to get us past the pandemic should be no different.

  3. @Too Many – of course it makes sense to do it, it makes sense for airlines to require it, the TSA simply lacks the legal authority to impose it themselves

  4. I would also add that the TSA requires protocols to be followed for the safety of the passengers as well as the staff. Given the constant exposure the TSA agents are exposed to, would it not be prudent to have the mask become a requirement to minimize the risk of exposure for all involved? Why can’t requirement of a mask be part of the protocol? Also, if municipalities and states can require mask in public retail environments, I don’t see how this can’t be applied here if federal requirements are not leaned on.

  5. “It’s a shame that government leaders from Dr. Anthony Fauci, to the Surgeon General, to the CDC, lied about masks at the start of the pandemic so people wouldn’t go out and buy them, competing for scarce resources with government and hospitals.”

    The shame is not definitely on the leaders, but the deeply rooted capitalism in every Murican culture and spirit. Would they have told everyone the importance of masks in the beginning, I’m certain that the majority of citizen would just hoard everything, like this guy: https://www.nytimes.com/2020/03/14/technology/coronavirus-purell-wipes-amazon-sellers.html

  6. @Tom really no mask I certainly hope you stay home. It is not a FAKE virus are you nuts? Just wear the DAMN mask it will not kill you but the virus will. What part of that do you not understand? Might not be you but it could be a family member with that mentality.

  7. @denise

    don’t be too angry at Tom. A study came out today showing cognitive decline in some people that have had Covid-19. CNN’s Richard Quest mentioned that, 60 days after getting it, he’s still having problems.

    So, don’t be too hard on Tom’s obviously idiotic outburst. It’s obvious he’s also showing cognitive decline, but really rather acute in his case

  8. Since Gary is not a lawyer, in the absence of settled legal precedent directly on point, his statements as to what is or isn’t legal carry no weight. That also applies to his medical opinions being offered on this blog. Gary can certainly offer opinions, which should be clearly labeled as such. I’m not saying he is definitely wrong, just that things aren’t as black and white as he wants us to think.

    He sets forth arguments as to why TSA mandating masks would be illegal. There are also arguments for the opposite conclusion such as protecting the health and safety of TSA agents so that they can carry out their legislatively mandated role in aviation safety.

  9. @john – I offer statements from the same Congressional chair seeking the TSA should do this! And I offer courts speaking to TSA procedures for passengers being subject to the Administrative Procedures Act. Even if they could justify masks for passengers on the basis of protecting their own employees the requirement would first be subject to notice and comment. But House Democrats believed a change in law was required – WHICH IS WHY THEY PASSED ONE – it just didn’t make it through the Senate.

    Taking the position that nothing’s illegal until it’s actually been put into practice, and then been challenged in court, and a court has ruled is rather… odd.

  10. KimmieA says:
    July 9, 2020 at 8:14 am
    If, starting today, 90% of the world’s population were to wear masks in public for 3 short weeks, this virus would be wiped off the face of the earth.

    Really, is it too much to ask?

    Are you a medical professional? Epidemiologist? Where is the study literature to back this up. Some countries such as Korea and China did have 90% or higher compliance but still have the virus? Your post make no sense. A mask while it may help if used correctly is not a cure all stop spreading this nonsense.

  11. @Gary, Right. So requiring masks at TSA screening may not be illegal assuming TSA complies with applicable APA requirements, if any.

    Legislation may be necessary to require “each passenger and cabin crew member to wear a mask or protective face covering while onboard an aircraft of the air carrier.” That doesn’t mean legislation must be passed to require passengers to wear masks at TSA security checkpoints to protect the health and safety of TSA employees so TSA can do the job congress has asked it to do.

  12. @Gary – how odd to blame capitalism for lies by government?
    Ok. Let’s not blame capitalism and let’s say the government didn’t lie. Wouldn’t you or any fellow American hoard as soon as it’s anounced?

    @Cmorgan: “Are you a medical professional? Epidemiologist? Where is the study literature to back this up. Some countries such as Korea and China did have 90% or higher compliance but still have the virus? Your post make no sense. A mask while it may help if used correctly is not a cure all stop spreading this nonsense.”

    Yet many Asian countries don’t have 4 Million cases like US? In fact the total sum of total cases in Japan, Korea, HK, Taiwan, Singapore, Vietnam, Thailand, etc. is not even close a fraction what US has. And yes, together there are at least 300 Million people living there.

  13. I was surprise when I went to Chicago for a layover two weeks ago and some of the TSA agents were not wearing a mask. Let us start with them first.

  14. To be fair, government officials didn’t lie about masks at the beginning. We were told that masks do not protect you from COVID-19 — that was true then, and it’s true now. Then, later, studies concluded that masks do prevent you from spreading COVID-19 to others, and recommended that we all wear masks to protect each other.

  15. I recently flew a combined 4 flights and was masked throughout except for at the initial TSA check even with precheck where each of the employees told me to remove the mask, to which I answered that that defeats the purpose of wearing a mask. They a looked at me quizzically as if that didn’t make any sense.

  16. @live5 – Dr. Fauci acknowledged lying about masks in order to give time for hospitals and government to source them for themselves

    https://gizmodo.com/dr-fauci-made-the-coronavirus-pandemic-worse-by-lying-1844050358

    It was always a bizarre claim that masks were desperately needed for medical professionals treating covid patients, but they provided no protection from covid for anyone else, and they had to resort to contortions like people not wearing masks correctly (then show them how!).

  17. Tom… please let the rest of us know your flying itinerary over the next 6-12 months. I’m sure the rest of us reading these comments would like to avoid you.

  18. @EV Gary has no problem starting so many of his covid blog posts with his boilerplate “It’s a shame that government leaders from Dr. Anthony Fauci, to the Surgeon General, to the CDC, lied about masks at the start of the pandemic so people wouldn’t go out and buy them, competing for scarce resources with government and hospitals.” And yet never shovels blame upon the US President who is the real reason DHS/TSA won’t issue federal mask mandate. Wonder why…

    Some context: https://www.govexec.com/management/2020/07/homeland-security-democrats-implore-tsa-institute-mask-requirement/166697/

  19. No one talks about the fine print when it comes to masks single-use mask can only be used once otherwise they are not helping prevent the virus that is the facts and every time you hear that masks help there’s a little asterix as long as they’re used properly. But no one uses them properly 0 people outside of hospitals and that’s why they become more dangerous for you that’s the truth

  20. The proper agency for a mask mandate on airlines would be the FAA, not the TSA. I don’t know whether the FAA has the authority to require masks but there’s an emergency exception in the Administrative Procedures Act that would exempt any requirement from the normal rule making procedures.

    You’re not an attorney Gary so just stick to commentary about the travel industry, which you actually have knowledge about.

  21. @Jennifer – an emergency rulemaking still requires 30 days’ notice and a comment period. While jurisprudence is highly mixed around good cause exception to notice and comment, it is likely to be available only when an agency’s emergency rulemaking is within the scope of its legislative mandate. The fact that the TSA has resisted such a mandate would undercut a claim about it being an emergency, and – again – the House clearly thinks legislative authorization is required since they’ve already gone down that route.

    In any case I agree with you that the TSA is the wrong agency to be mandating passenger masks during air travel (the Secretary of Transportation could probably do so under her authority to ensure ‘safe and adequate’ air transportation) though it’s unclear whether that authority would extend to mask wearing *at the checkpoint* that is under the jurisdiction of a different agency.

  22. @Sam Kim – That’s literally the article I link to in this post. I am no fan of the administration’s response, and Dr. Fauci represent’s the administration too. The bureaucracy failed, which suggests a more competent administration may have also though of course we’ll never know.

  23. Dear Gary

    To blame Dr Fauci, the CDC and the surgeon general for poor adherence to mask wearing, and not mention Trump and Pence in that sentence as the main responsible parties is absurd imho.

    The non mask wearers have no interest in science. They are not listening to Dr Fauci today, they haven’t listened to him for the past MONTHS during which he has been urging us to wear masks, and I cannot imagine that they listened to him in the first few days of this Pandemic in early March, and somehow formed an unchangeable opinion about mask efficacy

    Dr Fauci has been trying to spread facts and truth about this disaster, Trump and Pence are spreading lies and nonsense

    Trump could have made sure that we had plenty of masks if he had listened to his advisors in JANUARY when they begged him to stock pile/ mass produce PPE. This disaster was preventable, and the high casualty count lies with our liar in chief

  24. Eric Smith that makes no sense. The purpose of the mask is to slow the spread of the vapor cloud which has NO bearing on how old the mask is. The thing could be an old bra. Doesn’t matter.

  25. I first became aware of Gary Leff years and years ago. You served as my first guru in the world of miles and points. Through you and your colleagues, I was blessed with many years of traveling around the world in the front (often the very front!) of the plane, staying in some of the world’s best hotels and, as I learned about elite “gaming” from you, often staying in amazing suites.

    Here we are years later and so much of your writing is political. Hey, it’s your site and you are clearly free to do whatever you want. The arguments used to be about those saying you shouldn’t value points like you did unless you were actually willing to pay for those First Class tickets. Now look where you are. Look at the level of anger in some of your readers. Look at the level of animosity it has engendered among some of your readers.

    Is it really worth it Gary? Again, your site and you are free to go where you want. But I have to admit it saddens me. And you know I have followed you for years and have great appreciation for your expertise. But you have opened up a Pandora’s Box. Maybe it is time to reconsider the vision of your site. Respectfully – Steve

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