POWERS OF THE TSA

by Larry Becraft

As a frequent flyer, I have seen vast changes in air travel since “9-11". From the few months after “9-11" when you could encounter “passenger security screening” that was manned by airline employees, including pilots, we have now “progressed” to the point where we have a federal agency, the TSA, performing this function with metal detectors.  But in the last year, the American public has been informed by its media that “body scanners” are to be installed to replace the metal detectors.

Since the OKC bombing, there has been “screening” for entry into public buildings, state and federal. That trend was followed by the TSA as it has slowly over the last 9 years divided American airports into “secured” and “unsecured” areas, requiring “passenger screening” for those entering the “secured” areas. But finding fault with simple metal detectors, TSA now proposes possibly the “ultimate” in “passenger screening”: body scanners. If this trend is not reversed and stopped, “passenger screening areas” will emit more radiation than the Nevada desert did during nuclear testing.  Those manning these body scanner stations will be greatly harmed as will those who only spend a few minutes passing through them. Some proof of this harm is found in this letter from some University of California professors. The FDA, in 21 C.F.R., part 892, has established standards for radiology devices "intended for human use". Would these body scanner meet FDA standards?

I consider vaccine programs as a method of purposely harming the health of the American people. So too will our health be harmed by the use of body scanners in airports. If microwave ovens can cause cataracts, can we expect frequent flyers to get cataracts too? If radiation fries flesh, what will happen in a few years to those who work in “passenger screening areas” and to those who merely pass through them? I leave to the experts the answers to these questions. As for me, I do not look forward to the day when I will be required to be radiated just to travel by air. When that happens, my flying days will be over.  

To change these predictable future events, concerned Americans need to at least learn the legal basis for these activities of the TSA, and the purpose of this page is to provide the interested reader with at least access to that legal information. The relevant federal laws regarding TSA airport “passenger screening” are codified in 49 U.S.C., subtitle VII, that relates to “aviation programs.” The TSA was created via 49 U.S.C. § 114, and it, via an undersecretary, is “responsible for day-to-day Federal security screening operations for passenger air transportation and intrastate air transportation under sections 44901 and 44935".

The relevant sections of 49 U.S.C. that relate to these “security screening operations” are the following sections (these links go to FindLaw):

49 U.S.C. § 5103:
General regulatory authority

49 U.S.C. § 40103:
Sovereignty and use of airspace

49 U.S.C. § 44901:
Screening passengers and property

49 U.S.C. § 44902:
Refusal to transport passengers and property

49 U.S.C. § 44903:
Air transportation security

49 U.S.C. § 44904:
Domestic air transportation system security

49 U.S.C. § 44913:
Explosive detection

49 U.S.C. § 44919:
Security screening pilot program

49 U.S.C. § 44920:
Security screening opt-out program

49 U.S.C. § 44923:
Airport security improvement projects

49 U.S.C. § 44925:
Deployment and use of detection equipment at airport screening checkpoints

Of course, from these links to FindLaw you can easily scroll, via the "next" link at the bottom of each page, through other sections of this part of 49 U.S.C.  Did you read anything in these sections that authorizes the use of X-ray “body scanners” to assist with “passenger screening”? Did you notice certain sections mentioning private company contractors?

Obviously since there is no statutory authority to put body scanners in American airports, this activity must apparently be based on TSA regulations. These TSA regulations linked here are PDF images of the TSA regs (these are also word searchable). After study of these regs, I have not found anything that addresses the installation of  “body scanners” in American airports.

CONCLUSION

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.").


FINIS.