The US Court of Appeals for the DC Circuit ruled today (.pdf) that TSA implementation of nude-o-scopes was done in violation of the Administrative Procedures Act.
Specifically, the Court ruled that the TSA’s policy that travelers must subject themselves to imaging machines or take a pat down was legally required to have gone through a public notice and comment period. Though the promulgation of this rule was done illegally, the Court isn’t requiring the TSA to stop use of the machines for primary screening. They’re just telling the TSA to go back and dot its I’s and cross its T’s.
The TSA argued that they were just interpreting the statute directing the TSA to detect weapons that might be used by terrorists, and the general regulation that passengers have to do what the TSA says in order to get through security. The Court called them on this, if the analysis were true any broad statute could be passed, and an agency could adopt a broad regulation, and then anything falling underneath the broad heading of that regulation would be merely interpretive rather than a new regulation, thus circumventing the Administrative Procedures Act which is the general law governing how regulations are made by the US Federal Government.
The TSA also argued that because they don’t always use the machines, or use them at all airports, it’s basically just a tactic and not a rule. The Court scoffed at this, saying that any passenger showing up at an airport with the machines on a day the TSA is using them is given a choice to go through them or take a pat down. They don’t get out of the legal rules because they don’t always use the machines everywhere. Since the TSA contends its screening procedures are binding, not optional, it’s a rule.
The court ruled that the TSA must publish notice of its screening rule in the Federal Register, and then open it for public comment.
Now I’m not a lawyer, let alone an expert in Administrative Procedures law. So this is all just my casual read of the Court’s decision. But my pretty solid prediction is that the agency will take comments, they will write a response to those comments generally in order to appear to be taking them into account and not acting capriciously (they’ll paper their decision better this time) and then just do what they want.
Courts will overturn a regulation only if it’s arbitrary and an abuse of discretion, which it could be argued to be if they simply ignored al public comment. But Chevron deference basically says that an agency gets to decide what to do whenever there’s statuatory ambiguity. The TSA will do what it wants, they’ve been scolded for ignoring the law but aren’t being told to even stop their current procedures despite the fact that they were rolled out illegally.
At a minimum folks should take notice of the imperial way that decisions are being made, and be concerned.
(HT: Papers, Please!.)
Unfortunately, the court also definitively ruled against all of EPIC’s substantive arguments against AIT. It doesn’t look like we’re going to get any help from the courts in ending this practice–it will have to be done by legislation.
Federal laws are simple … congress passes the laws. Buried within those laws are sections that authorize the appropriate agency to write regulations expressing/clarifying/detailin congressional intent. The difficulty arises in determining that intent. Sadly, it is usually just to get re-elected.
Thanks for this. It’s helped me more clearly review the Court’s opinion, which did not address the Fourth Amendment concerns.
My love of the scanners and my fear of imperialism are at the same level.
Trying to be a bit more optimistic … can’t we use the public comment requirements of the APA as a marketing opportunity for pro-civil rights, pro-4th Amendment arguments?
As with public comment processes for other agencies, interested parties and organizations submit comments with analysis, data, sound arguments, which they then also market outside of the public comment process. By so doing they gain more visibility for such arguments while also making it more difficult for TSA to pretend to acknowledge them and keep doing what they want.