The FAA and TSA Can’t Legally Mandate Masks Or Temperature Checks

It may be a good idea to mandate passengers wear masks, and to take their temperatures as they arrive at the airport. However it’s a bad idea for government to charge TSA with taking temperatures of passengers who are already inside the airport at security checkpoints.

Airlines have lobbied for TSA to do this, and TSA has prepared to do it, however Aviation Policy News points out that neither the FAA nor TSA have the legal authority to mandate masks or take temperatures.

While “mask-mandate supporters have cited a 2006 notice in the Federal Register in which the FAA declares itself to be a “public health authority”” this related only to FAA reseaerchers complying with health privacy rules rather than exercising powers over passengers.

Meanwhile TSA has 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 has gone through no such rulemaking.

The Secretary of Transportation, though, might be able to impose a mask and temperature check requirement on air passengers as an exercise of her authority to ensure ‘safe and adequate’ air transportation.

The tenuous legal basis for govenrment mask mandates for air passengers, at least, was recognized by Congress. That’s why the latest coronavirus stimulus package passed by the House would crate legislative authority for a mask mandate, “requir[ing] 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.

An airport, however, may be able to enforce masks and temperature checks “without violating federal grant assurances, according to FAA guidance from late March—and especially if airports merely mirror policies imposed by state and local public health authorities.”

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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  1. Come on @Gary. Laws and the Constitution don’t matter anymore. There is a pandemic. Thar means every mayor, governor and beurocrat in the country gets to unilaterally create whatever rules, restrictions or edicts that they feel are necessary on any given day regardless of whether they make any sense or whether the authority to enforce them actually exists.

  2. They will have to rip me out of the airport/off the plane Dr. Dao style. Not wearing a mask during flights. High risk persons need to take precaution, but I’m not part of that group.

  3. I demand safety!! Not only should masks be mandatory, I demand gloves be worn with mandatory re-application of sterile gloves and masks at the midpoint of flight and upon landing.

    In both airports and in the air, male travelers should have trained professionals manipulate the flyers members so that the traveler does not touch their own genitalia at any time thus preserving the general cleanliness of the gloves.

  4. Please check the spelling in your future articles. It’s very distracting when there are many misspelled words in your work

  5. The inadequacy and chaotic nature of the botched Federal response to COVID-19 never ceases to amaze me. You figured that by now they had it figured out.

    No wonder America is #1 in deaths.

    Criminal.

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