There is no legal requirement to show id or answer any questions to establish identification before flying. In other words there is no extra work required by law which the fee would cover.
There is no legal requirement to show id or answer any questions to establish identification before flying. In other words there is no extra work required by law which the fee would cover.
The TSA is literally doing all this extra work though, whether or not you think it's required by law. They're not just pocketing the $45 and then blindly waving you ahead.
Let's be more precise. The TSA has created extra work for themselves, and are charging us for it, whether it's legally required or not (because they pretend that it is).
Sure. But it's not "pretend". It's genuine regulatory policy they've created because they believe it's necessary for security, and this has been a decades-long project. The article is arguing they don't ultimately have the legal authority to make that regulatory policy. Maybe that'll go to court and be tested, maybe they'll win and maybe they'll lose. If they lose, maybe Congress will pass explicit legislative authorization the next day, and maybe that'll be brought to court, and the Supreme Court will have to decide if it violates the 14th amendment or not. But it's not "fake work", it's actually doing a thing.
No, it's not "regulatory policy". It's been done entirely with some combination of secret "Security Directives" and "rulemaking by press release". As the article and the linked references explain, the TSA never issued any regulations, published any of the required notices, or obtained any of the approvals that would have been required even if Congress had passed an (unconstitutional) authorizing statute (which it didn't).
No. Policy or regulation would have a basis in law. This administration has aptly demonstrated their contempt for the law. Nobody gives a shit about some grunt federal employee getting extra work.
This is just a way to compel compliance and to push the agenda for ID with higher documentary requirements, ultimately to deny the vote.
As I mentioned[0] a few months ago after the TSA announced the $45 "fee":
And now the birds are coming home to roost. No real surprise there, IMHO.[0] https://news.ycombinator.com/item?id=46128346
I mean I could hire someone to continuously dig and refill the a hole in the ground. That would certainly be them doing a thing, but it would also definitely be fake work. There's been plenty of rhetoric thrown around but no real evidence has been produced that suggests the TSA isn't engaging in a bit of circular digging at the taxpayer's expense with this.
Ah, digging holes and refilling them - that'd be literally the NREGA program in India
It's security theatre, someone has to pay the performers
Flying without ID just gets you the full patdown treatment. It’s not like they’re tracking down people to vouch for you.
I don't know what you mean by "full patdown treatment", but they're absolutely tracking down your information in databases and interviewing you about it. See replies to:
https://news.ycombinator.com/item?id=46864182
It's absolutely not just enhanced physical screening.
It's not just a patdown. They take you to a phone booth that has a direct line to some portion of the FBI IIRC, and they ask you a bunch of questions to confirm your identity. At least this is what happened to me about ten years ago when I lost my wallet in a different state and needed to fly home.
... and the law in most states requires only that you give your name and possibly your DOB to the authorities upon detainment. So as a purely academic exercise, what can they even do if you refuse to answer beyond that? Obviously in practice they will fuck with you or just straight up violate the constitution, but theoretically I'm unsure how they can continue to seize you after that.
...they don't let you fly.
They can't detain you (if you're not otherwise some kind of suspect, and you're not trying to assault them or sprint past security or anything), but they don't let you fly.
... if you aren't detained you are free to go. And if you are free to go, you are free to stay, unless the property owner has trespassed you. TSA doesn't own the airport, at least in my state. So how can they trespass you from the airport or otherwise continue to detain you from moving forward?
I mean, I know you're right, and I know you will always lose if you try, but I don't understand the legal basis.
You are free to leave. You aren't free to go wherever you want. You aren't free to go into the employee areas, or out onto the runway. If you don't clear security, you aren't allowed in the secure portion of the airport. Not allowing entry into an area is not "detaining you from moving forward".
If the government is requiring the property owner to submit to TSA, that's a public act and not a private one, which means it is bound by the bill of rights and most importantly the 4th 5th and maybe even 6th amendment. The government cannot punish you for exercising your rights by refusing you to move forward into the private place you could otherwise lawfully go. If you can't go to the employee area, that's because certain individuals are trespassed from going there from the private owner, not because the government is forcing it. If you can't go to the boarding area, because of the TSA by public act strong arming the property owner, that is not an act of the private owner, and if it's done because you refuse to answer questions it is a violation of your rights.
The ruse here is to pretend like the property owner is agreeing with TSA because TSA forced them to this agreement by government act. But that is just the government trying to have their cake and eat it by forcing someone to do something and then pretending it is a private act which isn't bound to the constitutional right to not have to answer additional questions.
What are you talking about?
The government can absolutely pass laws prohibiting you from entering a privately owned location. There is no constitutional right of access to private property.
And more specifically, the commerce clause of the constitution allows the government to regulate air travel, which means regulating airports. The fact that they're privately owned doesn't change anything. If a private airport owner allowed you to proceed through security, they'd be breaking the law.
There's no public access doctrine for airports the way there is for streets or parks.
You clear seem to wish it was otherwise. But it's easy to do the research to understand where the authority comes from and why it's entirely constitutional.
Constitutional right of access, which as you say doesn't exist, isn't the same as allowing access but conditioning it upon you relinquishing your bill of rights.
If the difference between access and not having access is relinquishing your civil rights, then the reason for denial is exercising your civil rights. Those are explicitly protected. So while you're right they could make a law that says 'no one on the plane' they cannot make a law that says "everyone on the plane except those who won't give up their 4th or 5th amendment rights not to answer additional questions."
There have been prior SCOTUS cases narrowly allowing asking name, DOB, addresses, as well as inspection of your items during certain inspections, but this is something entirely different beyond that asking further probing questions about your identity.
And that brings us back to the tagline of the article:
The TSA is violating the law, and the constitution, and making it up as they go.Just wait until you find out how the feds enacted the 55mph speed limit or are using the threat of revoking Medicare funding for hospitals that perform certain medical procedures that the feds would like to have not happen...
Presumably the airport or airline has agreed to (or would agree if asked to) have TSA decide whether you are “free to go that way, towards the airplanes”.
You are already free to go that other way (towards the street), but not necessarily free to go the way you want.
I don't think it's a matter of whether or not you are free to go. It's a matter of whether they let you on the plane.
It's just federal law.
Cities don't own restaurants either but can fine them and close them if health inspections fail, because there's a law for that.
The legal basis is the federal laws written specifically around airport security.
I think the question here is, which laws?
LMGTFY: Aviation and Transportation Security Act
https://www.govinfo.gov/content/pkg/PLAW-107publ71/html/PLAW...
The confusion in this thread shows me that even here, no one understands even the question, let alone the answer.
As far as I can tell, a person is free to go if they refuse screening: They won't be getting on a flight, but they can just leave. There's no detainment involved in this process.
Whether they can then elect to stay is a different matter, I think.
But so what? How long would a person have to stand in a screening area before someone who properly represents the ownership of that space shows up and authoritatively tells them to GTFO, do you suppose?
at least, hold or delay you long enough to make you miss your flight.
Like someone who would deliberately show up to work in a speedo because "show me where in the employee handbook it says I must wear pants"
A better analogy would be a legally protected right to show up to work dressed in street clothes, your boss imposes an illegal requirement to wear a specific uniform, and then attempts to charge you if you show up without one.