Supreme Court Challenges Government Overreach: A Landmark Case for Air Travel Rights

The reason we’re required to show ID at airport security is so that the government can check who we are against No Fly and other watch lists. That’s the reason for REAL ID requirements (that haven’t yet been implemented after 20 years) and why they’re concerned that CLEAR allowed three people over the past year to skip TSA ID checks without having their identities verified.

But the underlying No Fly and watch lists that require extra security screening are, themselves, flawed.

  • No Fly Lists include people added by mistake (FBI agent checking the wrong box on a form or having a name similar to someone else)
  • And even added maliciously (such as retaliation for refusing to cooperate in an investigation).

These lists are supposed to be used for those who are genuinely dangerous, that need to be kept off of aircraft, but the lists have been misused both intentionally and unintentionally. There’s no real standard for being placed on the list, and no due process.

  • people who shouldn’t be on them get placed on them
  • there’s a byzantine process for getting cleared
  • the government even ignores some requests, until victims (passengers) sue and reach the point where the existence of the lists and its procedures would come under judicial scrutiny and challenge over whether they’re even legal.

Usually when there’s potential judicial scrutiny the government will remove the litigant from the list, mooting their suit, to prevent the case from proceeding.

The Supreme Court is saying that’s not enough and will allow one such challenge to move forward not buying the mootness argument. (HT: @crucker)

Justice Neil Gorsuch said the government’s sparse declaration that Fikre won’t be placed in the No Fly List in the future based on currently available information doesn’t guarantee he’ll be kept off the list if he were to “say, attend a particular mosque or refuse renewed overtures to serve as an informant.”

“Put simply, the government’s sparse declaration falls short of demonstrating that it cannot reasonably be expected to do again in the future what it is alleged to have done in the past,” he said.

People have lost the right to travel even when nobody contends they’d done anything wrong at all. The Biden administration has argued that officials intentionally and maliciously placing individuals on these list when there’s no threat should be covered by qualified immunity, because there was no ‘clearly established’ right not to have the constitutional right to travel denied as retribution.

Indeed, last February U.S. District Judge Ronnie Abrams agreed that “the right not to be pressured by law enforcement to inform on members of their religious communities through the coercive or retaliatory use of the No Fly List… [was] not clearly established at the time of the alleged violations.” Federal agents, according to the judge, could not reasonably have known that sticking people on the No Fly List for defying them was wrong. There have been many such cases.

I used to think that the point of having a Democrat in the White House was to curb these sorts of abuses, but remember that President Obama sought to extend the use of No Fly Lists to limiting other constitutionally-protected activities (gun ownership). And here the Biden administration defends the use of arbitrarily adding people to those lists.

Using unreviewable, secret and often arbitrary Minority Report-style pre-crime profiling as a basis for denying any kind of right is a huge departure for our system of justice.

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, 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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  1. I say , No Fly to anyone with a big heavy carry-on , anyone with a fake service animal , and anyone who talks back .

  2. @Alert, no need for government involvement. The airlines already do this and more. Just look for a flight attendant on a power trip.

  3. @roundtree … I become friends with all FAs by suggesting they ought to “go shopping” … amazingly , they are very very pleased to hear my suggestion , smile , and readily agree with all my requests .

  4. It is terrific to get a little good news, especially from this court. Now if the feds follow through maybe this miserable situation will improve. But remember, governments don’t willingly give up power.

  5. “I used to think the point of having Democrats in the White House was to curb these abuses”
    You made me laugh out loud with that one!

  6. It is more egregious for governments to be able to confiscate cash without due process. Airports are a major offender in this area.

  7. “I used to think that the point of having a Democrat in the White House was to curb these sorts of abuses”

    And you thought that for no other reason than that’s what democrats told you to believe, you naive little boy.

  8. The fact that people are put on the list as punishment or coercion by government officials is a definition of an abusive, authoritarian government.

  9. The No Fly List, the Selectee List, and the Terrorist Watch List were created by George W. Bush’s administration and have continued through the administrations of Barack Obama, Donald Trump and Joe Biden.

  10. The haraSSSSment flagging system was the child of Al Gore’s doings during the Clinton Admin years. It went crazy on steroids during the GW Bush Admin after 9/11. Then the Obama, Trump and Biden Admins more or less continued with this as business as usual. Governments are not saints, which explains why even some democratic ones want to assassinate free persons abroad and do so even in the absence of a free and fair open public trial with a conviction for a capital punishment crime.

  11. Agreed with @Drrichard, it is terrific to get a little good news, especially from this court. Also agreed that governments don’t willingly give up power. It’s pretty similar to the Administrative Courts issue (SEC, we’re looking at you), the No Fly List needs all of the Protections of Law, including Due Process, Transparency, Right of Redress, and Potential Damages. It would be particularly positive if any party placing an individual on the List for illegitimate reasons was denied Qualified Immunity. As for @Amy and @david, you are correct, the No Fly List was initially put into place by the Republicans. That said, the abuses came later under you know who.

  12. Jay Gee… don’t laugh. Leff is a card carrying member. He’s not kidding… he really thinks his party can do no wrong. Most lefties behave this way… until it happens to them. While Leff has not been put on the no fly list… this is clearly his area of sensitivity since this his field.

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