To reach any definitive conclusion regarding the
installation of body scanners requires more facts and
investigation. However, from the statutory and regulatory scheme
that we can all read, certain conclusions may be reached.
First, if TSA and its employees are actually operating the body
scanners and the “passenger screening” process, to subject the
American public to this very radiating and harmful process would
obviously require adopting regulations to this effect. This
would require the TSA to first propose regulations via the
Administrative Procedures Act, 5 U.S.C. §552, et seq., which would allow
Americans to object to them. Briefly, these TSA regulations
would state something to the effect that: “Starting July 1,
2010, body scanners shall be installed at all American
‘international’ airports and such installations shall be
completed on or before July 1, 2011. Such scanners will be of a
certain manufacture and be capable of doing certain things”
further listed in the regulations. But, there are no such
regulations.
If the first scenario has not happened, it is most likely that
the second has. When reading the above linked TSA regulations,
it is obvious that TSA has lots of contractual agreements with
airport authorities and air carriers. Most likely, the TSA
screeners that are seen today in airports are merely private
employees working for private contractors. Since TSA is a
federal agency subject to constitutional restrictions like the
4th Amendment, it cannot search an American without probable
cause. However, it has imposed on airport operators a duty to
screen passengers. Do you not think that it is these airport
operators, responding to pressure from TSA, who are buying these
body scanners from Michael Chertoff, former Secretary of
Homeland Security? Chertoff now works for the company that makes
these body scanners!
Who are these “TSA employees”: are they public or private? If
they actually are official TSA employees, they are exposing the
public to bodily harm without authority. Would a Bivens action
be appropriate? But if they are private, we need to learn for
whom these people work and everybody else who is involved in the
manufacture and use of these harmful devices. We need this
information for the inevitable lawsuits that will arise.
A few relevant cases:
United States v. Lee,
106 U.S. 196, 1 S.Ct. 240 (1882): Arlington, Lee's estate,
subject of litigation, the United States claiming ownership via
tax sale some years earlier. In holding for Lee's heirs, the
Court stated:
"No man in this country is so high that he is
above the law. No officer of the law may set that law at
defiance with impunity. All the officers of the government,
from the highest to the lowest, are creatures of the law and
are bound to obey it. It is the only supreme power in our
system of government, and every man who by accepting office
participates in its functions is only the more strongly bound
to submit to that supremacy, and to observe the limitations
which it imposes upon the exercise of the authority which it
gives," 106 U.S., at 220.
"Shall it be
said... that the courts cannot give remedy when the citizen
has been deprived of his property by force, his estate seized
and converted to the use of the government without any lawful
authority, without any process of law, and without any
compensation, because the president has ordered it and his
officers are in possession? If such be the law of this
country, it sanctions a tyranny which has no existence in the
monarchies of Europe, nor in any other government which has a
just claim to well-regulated liberty and the protection of
personal rights," Id, at 220-21.
See also Regents of University System of
Georgia v. Carroll, 338 U.S. 586, 597, 598, 70
S.Ct. 370 (1950)("As an administrative body, the Commission must
find its powers within the compass of the authority given it by
Congress."); F.T.C.
v. National Lead Co., 352 U.S. 419, 428, 77 S.Ct.
502 (1957)("the Commission may exercise only the powers granted
it by the Act"); Civil Aeronautics Board v. Delta
Air Lines, Inc., 367 U.S. 316, 322, 81 S.Ct. 1611
(1961)("the fact is that the Board is entirely a creature of
Congress and the determinative question is not what the Board
thinks it should do but what Congress has said it can
do."); Ramirez de Arellano v.
Weinberger, 745 F.2d 1500, 1523 (D.C. Cir.
1984)("[W]hen an officer acts wholly outside the scope of the
powers granted to him by statute or constitutional provision,
the official's actions have been considered to be
unauthorized."); and Outboard Marine Corp. v. Thomas,
610 F.Supp. 1234, 1242 (N.D. Ill. 1985)("Acting without
statutory power at all, or misapplying one's statutory power,
will result in a finding that such action was ultra vires.").