If I go through the airport with her, there is no guarantee the agents will let me stay with her and explain the situation. She can't remove the leg brace on her own for them to make sure it's not a weapon, and TSA agents can't do it properly.
So, basically, taking her to the airport is a recipe for having her verbally abused (treated like a mentally handicapped or non-cooperative person), and then physically abused (TSA agents going under her clothes to determine that she's just wearing a leg brace).
Maybe there's some special procedure for dealing with this, but it's easier to just not travel than risk it.
The TSA is a direct, overt violation of the 4th amendment (search and seizure). Thus, the US federal government is not legitimate under the US Constitution. (No, I am not advocating rebellion, violent or otherwise.)
If we simply let the airlines handle their own security, which is not a violation of the 4th amendment, none of this would be an issue. Moreover, it would make air travel and security screening a voluntary relationship between consenting parties (travellers and airlines), instead of a coercive relationship between two consenting parties and government agents.
I am - without being an expert - pretty sure there is a procedure for care givers.
The last time I flew - 2010 - it was a few months after my wife had bi-lateral knee surgery. She was mobile, but not spry, not able to walk more than fifty yards at a go.
We had an airport provided wheel chair, a guy or gal to push. My role was care-giver and I got to be with her throughout the procedure. 'Is this your care giver - step this way, Sir.'.
Worked pretty well: the pusher person knew where to go, the TSA goons got us to the head of the line and it worked out.
I don't know about the leg brace, though. That might be a problem.
I'm with you on the TSA being bad news and a worse idea. The day it was announced I knew it would be a goat rope, a hit against the 4th amendment and would never, ever, go away.
But I am old enough to remember when airports had observation decks for the public, anyone could march down to the gate with only a nod to the sleepy airport guy running the scanner, and if you'd told anyone what's going on in 2013 they'd snort and say
'Maybe in the USSR, it's run by commies. But never in the USA.'
I think half of the problem is the plethora of examples where the TSA does not even follow their own procedures, making this moot.
Freedom and rights have never been offered on a platter. You have to fight for them. And you have to keep fighting to maintain them.
For example, I complain about non-retaliatory coercion wherever I see it, including nationalized industries in other countries, the TSA, and US government-granted monopolies to telecom companies.
America is an _extremely_ diverse place, and generic online American-bashing just isn't appropriate (despite being quite popular), so please try to avoid it.
I'm also a lifelong Californian, so follow your own advice regarding diversity when condescending that my criticism necessarily depends on regional ignorance or outsiderism.
Besides sometimes being coarse and unhelpful, there are _many_ documented incidences of abuse on the part of the TSA. I would not feel comfortable with the TSA even taking her out of my sight, because if anything abusive happened, she would not be able to communicate that, due to the aphasia.
It's surprising that people can be so nasty, but while a lot of the TSA people are decent folks that think they're doing something patriotic, some of them are bottom-of-the-barrel scum who would not be employable anywhere else. And some of them get off on having unchecked power.
There might actually be some kind of procedure to go with a person as a caretaker and be allowed to _stay_ with them, that I'm just unaware of.
Don't be so fucking stupid. Apart from the obvious argument that flying is a privilege and not a right, and that you don't need to fly (however impractical this is), even if you were right on the 4th amendment argument it doesn't mean 'the US federal government is not legitimate.' That's just magical thinking. Please, do yourself a favor and read up on the concept of severability. I'm sorry to be so blunt but when you make absurd claims like that then you just chuck your entire argument into the toilet and pointlessly marginalize yourself.
Now what would be worth exploring is a constitutional challenge to the TSA under the equal protection clause because of your mother's disability. But declaring the entire government illegitimate? Don't you think that with so many lawyers in the US and almost 12 years since the TSA was created, if your idea held any water that it would have been the subject of a major legal battle by now?
Flying is a right:
" A citizen of the United States has a public right of transit through the navigable airspace."
I choose to exercise that right by hiring air travel with an airline.
Airspace is a public resource that belongs to everyone.
Which is unfortunate, because I agree with your point but I don't think the law backs you up here.
"I'm offering you a communication channel to studio executives right now."
And you say stuff like you do not have a right to fly?
Too bad there's no way to have HN not show me any of your replies (without scripting).
Well, you could put a paper bag over your head when you see one coming.
Both of these advocate taking away rights from the citizens, the rights for which we have paid a heave price.
"Privilege" is a false concept in any political discussion. Privileges are granted by the owner of the privilege. But the government does not own my life, nor any aspect thereof, nor any aspect of anybody else's life, including their property. We are not owned by the government. To hold otherwise is fundamentally anti-freedom and pro-authoritarian.
So to reduce that to this particular case: The government does not own airlines, airplanes, airspace, or myself. And even though it does own airports, _we_ (the people) paid for that. So, flying is not a privilege.
And as for reason, I directed you to the concept of severability. Your claim that a constitutional violation invalidates the entire existence of government is just not anchored in reality. Lots of laws have been overturned as unconstitional, as have many actions by individual law enforcement officers or officers of the government over the ~230 year history of the United States. Has any of the Supreme Court decisions ever resulted in a dissolution of the government? No. Why? Because an infringement of the a constitutional right does not delegitimize the existence of the government. The point of a constitutional republic is to be self-perpetuating and self-correcting, not to fall apart like a game of Jenga when you pull on the right piece.
Please, read the whole constitution. It's not very long, you can do it in an hour or so. There's a lot more to it than just the bill of rights.I stand by my original argument that your approach to this is an example of magical thinking, and is actually getting in the way of the change you seek.
I didn't say it was a false concept _in general_. For a kid to get an allowance is a privilege. What I should implied (and should have have said explicitly) is: the relationship between people and their government should not be governed by a notion of privilege.
> Whether or not you agree with the policy, you can't just ignore the existence of Supreme Court jurisprudence because the SC is the arbiter of these questions per the Constitution itself.
No, morality is the arbiter of these questions, and the government either acts in line with morality, or it does not. In this particular case, the Constitution has taken the right moral stand, and the rest of the government has ignored the Constitution.
> Your claim that a constitutional violation invalidates the entire existence of government is just not anchored in reality.
I don't know why you keep talking about this. I explicitly stated that I don't support rebellion. I think we should try to work within the legal framework we have to change things. So we have no practical disagreement. I just think that a government that does not follow the rules of the Constitution is not a _legal_ US government, because it's acting _illegally_, in the same way that China taking over the US by force would not be legal under the US constitution, and would also therefore be illegitimate.
This is not the same thing as severability. Severability comes into play when part of a law is deemed illegal. In this case, the law (constitution) is illegal, and one of the parties to the law is breaking it.
> Please, read the whole constitution
Your presumption that I haven't read it is ridiculous.
That's literally nonsense. Morality is an abstraction of what constitutes proper behavior. An arbiter is a particular body that judges disputes. In the United States, that judicial power is vested in the Supreme Court, per article III of the Constitution. Your concept of the Constitution as a moral agent, ignored by the rest of the government (including the Supreme Court) is just irrational.
I just think that a government that does not follow the rules of the Constitution is not a _legal_ US government, because it's acting _illegally_
Would you say that a person who breaks the law is not a legal person, or that a citizen who breaks the law ceases to be citizen? Nobody subscribes to this concept of legitimacy; the Constitution explicitly contemplates the possibility of disputes between the United States and other parties, and the possibility of being a party to a dispute necessarily involves the possibility that the United States will lose such a dispute by being out of step with the Constitution. That doesn't make the entire government illegitimate.
If you have read it you have certainly not understood it. Your arguments border upon the delusional.
I'm not saying that to insult you. I'm saying that because you're making these bizarre claims out of the air, whereas I'm citing to the Constitution's own text. Unlike the concept of privilege, there's no mention of 'morality' anywhere in the constitution, and you're using the term in a way that is not consistent with normal English usage.
In this paragraph, you called my position "nonsense" and "irrational," yet you gave no reason for those claims whatsoever. I agree with the other stuff you said, modulo I'm not sure how you define "moral agent."
The point is, morality DOES exist, irrespective of what any person or government does or says. This is the normal English use of "morality." Government action can either be in line with that, or contradict it. I'm not saying that the Constitution is the source or morality or an arbiter of morality. It's just that the 4th amendment _is_ in accordance with morality, along with the rest of the Constitution, broadly speaking.
> That doesn't make the entire government illegitimate.
So, what's the line? Clearly if the government didn't respect articles I, II, and III of the constitution whatsoever, and just appointed a dictator, it would not be legitimate. On the other hand, if it makes a minor (but illegal) clerical error, it is clearly still legitimate.
_My_ answer to this is that there is no set threshold; it's just a strategic question, a matter of rhetoric. So I don't think there is anything weighing on this topic. What do you think the threshold is?
> If you have read it you have certainly not understood it. Your arguments border upon the delusional.
That's just ridiculous. You keep saying this, but you haven't made a convincing argument that I'm wrong about anything, much less _delusional_, which is an entirely different beast altogether.
I'm not sure if you understand that there is a potential difference between what is right and wrong, and what is actually written into law.
Javert, my reasons are given in the third and fourth sentences, where I define the term 'arbiter' and then observe that the constitution assigns the judicial power of the country to the Supreme Court. You have denied that the SC is the arbiter of constitutional questions on things like rights and privileges. I find your position nonsensical and irrational because it is in conflict with the plain language of the Constitution and with the fact that the Supreme Court has been functioning in this role ever since the its inception.
When you talk about the legitimacy of the government, you're making a legal assertion. You are certainly entitled to your own opinion of what you consider to be moral, but when you make legal assertions on the basis of your personal moral code in complete disregard of how the governance of the US is constitutionally organized, then I view those assertions as fundamentally flawed. DannyBee has cited specific case law elsewhere in the thread that shows the error in your position.
If you are simply going to dismiss anything you disagree with as being morally deficient that's up to you, but your moral opinions are wholly subjective. The objective reality here is what the judicial branch holds to be the meaning of the constitution, regardless of how your or I feel about the morality or quality or their jurisprudence.
I have nothing further to say on this topic, and I think you know perfectly well what I meant in the first place.
There is legal, and there is moral. The SC is the final, ultimate arbiter of _legality_, not morality.
This isn't a conflict with the Constitution, it's just a "meta-Constitutional" issue.
You act like this is a bizarre notion, but it's actually the common-sense one. First, nobody holds the Constitution as a moral document, only as a legal one. Second, the founding fathers clearly articulated (and demonstrated) that when a government becomes tyrannical, it can and should be overthrown.
Now, putting all that aside, there is a separate issue, which is that the government doesn't follow the 4th amendment. Thus, it is acting both illegally _and_ immorally. Though I see that you would probably say it's legal if the SC rules it OK. I guess it would be "legal" to enslave people, if the SC ruled it to be OK under the constitution? I mean, can the SC just make _anything_ legal by "interpreting" the constitution _however_ it wants to? (Rhetorical question, not asking for a response.)
> your moral opinions are wholly subjective.
No, they're objective, but I don't expect that to sound reasonable to a non-philosopher (or even most philosophers).
> I think you know perfectly well what I meant in the first place.
I resent the implication that I'm just arguing for the sake of argument, which simply isn't the case.
> I have nothing further to say on this topic
I respect your wish to close the conversation, and I feel the same way.
The First Amendment is written in remarkably clear language. "Congress shall make no law". Every court that has confronted the First Amendment has pointed out that there's very little wiggle room in it. And yet there is room to maneuver in the First Amendment. You can't yell "fire" in a crowded movie theater; you can't stand outside a small-town prison and encourage a mob to lynch one of its inmates. This goes beyond "speech plus action"; there are messages that are unprotected by the First Amendment.†
Now look again at the Fourth Amendment. What does the word "unreasonable" mean? Do you think the Framers just slipped up and wrote one of the most important amendments in the Bill of Rights sloppily? Or do you, like every Supreme Court since the ratification of the Constitution, think that the Fourth Amendment is designed to balance the needs of the state against those of the people, and that's why they put a wildcard like "reasonable" in the text?
TSA searches are lawful under the "Administrative Search" doctrine. Searches can be allowed as "administrative" when they are (a) not targeted to specific classes of people, (b) avoidable --- as in, nobody is coming to your house or stopping your car on the road to search you, and (c) balanced against a legitimate need of the state (in this case, the safety of commercial airliners).
I think the TSA is patently ridiculous and they piss me off just as much as they piss you off. But they are not unconstitutional. The Constitution allows plenty of room for Congress to make dumb decisions, and this was one of them.
† Libel, fighting words, incitement among them.
Under your way of looking about it, that whole amendment is completely worthless, because "reasonable" is anything.
> balance the needs of the state against those of the people
There is no such thing as a "need of the state" that is opposed to "needs of the people." They're one in the same. I'm not claiming this is obvious, but I'm claiming that it's true. (BTW, there are no "needs of the people" apart from "needs of specific, individual people.")
Tangentially, your example of "avoidable" administrative searches actually is self-defeating. Air travel and road travel are completely analogous in every relevant way. So, the laws of the country are inconsistent.
Specifically, if commercial air travel is avoidable ("Hey, just drive from North Carolina to California,") then so is car travel ("Hey, just walk to work every day").
I mean, hell, why don't we just "avoid" going out of the house each morning?
The lawyers SHOULD go, "Hey, we can't stop cars on the roads without a reasonable cause, so we can't stop all air passengers, either." Of course, instead they'll just go, "Hey, now we can use the TSA to screen cars, too!" Talk about the erosion of rights.
You could then easily come up with a scenario in which a roadside search was lawful. For instance, SCOTUS has found some roadside sobriety checkpoints to be lawful (I am perhaps even angrier about sobriety checkpoints than I am about the TSA!)
These aren't controversial points and they aren't points I made up.
I feel like I have to keep saying this in every comment: there are more ways for laws to be wrong than "unconstitutional". I think the TSA is a farce and that it's offensive to core American values. But it's a farce that Congress was within its rights to create.
What the Constitution cares about are the "constitutive" issues: the procedural rights that ensure that all citizens have access to the political process and to the same dispute resolution mechanisms, and that attempt to ensure (as best any constitution can) that the majority cannot impinge on the minority without sharing in the downside of those actions.
As you know, the ultimate arbiter of Constitutional rights is the Supreme Court. The Supreme Court is 9 unelected humans with lifetime tenure. We are not a nation governed by philosopher kings.
The Constitution is not just not a source for our morality and values; it is deliberately designed to avoid those questions. The framers and every court since Marshall's recognized that the legislative branch was uniquely positioned to represent the largest number of people and equipped with the best fact-finding capabilities. So it falls to Congress to judge the morality and value of the country. SCOTUS is there as a "ref", to make sure the routinely terrible decisions of any collection of West African Plains Apes don't violate the integrity of the Constitution's process --- and that's (mostly) all they do.
Highly recommended: _Democracy and Distrust_, John Hart Ely.
Someone said that flying is a privilege. I said, no, it's not. He said, yes it is, because that's what the Supreme Court has ruled. I said, no, that's irrelevant: I'm making a philosophical point that would hold in _any_ country. The Constitution/Supreme Court is not the source of morality (including moral issues, such as what a privilege) is; reality is. It's a moral question, not a legal one.
> Constitution is not just not a source for our morality and values; it is deliberately designed to avoid those questions.
Exactly my point, although you seem to be trying to argue against me here.
Separately, I think the Constitution happens to be morally right with regards to the 4th Amendment, and that the government is not legally acting in accordance with the 4th Amendment.
As a result, TSA searches meet the tests for "administrative searches", just like courthouse searches do.
You & I probably agree that there is a moral imperative to respect people's privacy, and that the state has a moral imperative to minimize searches. My argument certainly isn't that there's no such thing as "morality", nor is it that your moral evaluation of TSA searches is wrong (again, I find them grossly offensive as well). All I'm saying is, the immorality of TSA searches does not make them unconstitutional; the Constitution defers most of morality to the legislature, and has often been an umbrella protecting immoral laws.
Revisionist nonsense is just revisionist nonsense.
The Supreme Court is also not the ultimate arbiter of Constitutional rights, that is reserved to the people to elect officials that either comport with the Constitution as interpreted by the SCOTUS or not. An "unconstitutional law" is still the law of the land until it is duly repealed by Congress.
The concept of judicial review does not even exist in the Constitution nor was it even debated by the founders. It was entirely a power grab in the aftermath of Marbury v Madison. Whether its establishment as a pro forma power was for the better of the country is debatable. The history of the SCOTUS is long and tangled.
SCOTUS has zero power to enforce any of its decisions other than budgetary control of the federal courts. It is a political institution just like any other but with a unique set of tribal rules. It offers its opinions, and if it offers too many contrary to public opinion it becomes irrelevant to political life.
Um, no; for a non-lawyer (at least I think he is), Thomas is one of the more knowledgeable people around about the law.
> The Supreme Court is also not the ultimate arbiter of Constitutional rights, that is reserved to the people to elect officials that either comport with the Constitution as interpreted by the SCOTUS or not.
You're quibbling. Yes, lawyers all learn in first-year Con Law that Marbury v. Madison  was a bootstrapped, ipse dixit assumption of authority by the Supreme Court. But almost uniformly, state and federal officials have gone along with it.
EXAMPLE: When Arkansas state officials tried to block enforcement of the Court's  school-desegregation rulings, President Eisenhower sent the 101st Airborne to Little Rock to escort the black students, known as the Little Rock Nine, to school .
The only significant exception I can think of is from the Civil War: Chief Justice Roger Taney ruled that only Congress had the power to suspend habeas corpus and therefore a suspected southern-sympathizing saboteur in Maryland could not be detained by the Union Army without judicial process. This was Taney's ruling as an individual circuit justice, not a decision of the full Court. President Lincoln and the Army ignored the ruling, but a year later the prisoner in question was released (along with others). The case was Ex parte Merryman .
> An "unconstitutional law" is still the law of the land until it is duly repealed by Congress.
 Style convention: Whenever you see "the Court" in American legal writing, it is supposed to refer only to the Supreme Court of the United States; all other courts are referred to as "the court" (lower-case c). EXCEPTION: In a brief, you capitalize references to the court you're in, for example, "this Court previously ruled ...."
 http://en.wikipedia.org/wiki/Little_Rock_Nine#Armed_escort -- for photos, see http://66070092.nhd.weebly.com/military-interference.html
b) Quibbling? Have you ever practiced law or been involved in it? If not, prepare yourself; you are in for a frustrating experience. What you call quibbling is what you pay several thousand dollars an hour for. That is the essential function of the legal profession. To quibble. However, it is not "quibbling" to state that SCOTUS has no power of judicial review granted in the US Constitution. It is an assumed power; an assumption which could just as easily be undone by another accident of history. Therefore, they are hardly best described as the "ultimate" arbiter. That power remains one of the consent of the governed. Clear?
The examples you state are of the executive branch exercising (illegally) State power for political purposes. It is not the marshals of the SCOTUS directing the US Army or some nonsense.
As for your "lack of memory" regarding the legislative and executive ignoring the dictates of SCOTUS you need look no further back in history than the same civil rights era you point to. Most of the opinions regarding civil rights emanating from the Warren court were flatly ignored for years. It was the force of public political will and some may argue an ascendant media that changed public policy.
See above? To what? I hate to tell you this, but an opinion of SCOTUS is not a magic incantation. According to your view I suppose if SCOTUS decided some absurd conclusion in clear contradiction of the Constitution it would simply be law?
Consider a more realistic scenario. For example if a future Court decides that the absurd Roberts opinion in the "Obamacare" decision and its legal gymnastics regarding the commerce clause is reversible. Do you think the executive and legislative will refund all the taxes and penalties they will have collected in the interim? If we follow your line of reasoning, a future SCOTUS makes the law void as of the date it was enacted, magically as if it never existed. This may be what they teach in high school civics classes (do they still teach those?) but it is not how power ebbs.
The judiciary has no real power other than that of apparent authority. Why do you think they have resisted for so long cameras in the courtroom? Why do they engage in absurd theater of black robes (thankfully no wigs)? Because once people see how the sausage is made that apparent authority evaporates and they are just another arbitrary institution.
SCOTUS and most, but definitely not all, supreme courts throughout history thankfully have been nothing more than theater.
As Thomas correctly notes below, yes; that's how I earn my crust. (A lawyer would have looked that up for herself.)
> The judiciary has no real power other than that of apparent authority.
That's not exactly stop-the-presses news. Lawyers generally are taught it during their first week of law school, just in case they missed it in their college Government 101 courses or high-school civics.
> It is an assumed power; an assumption which could just as easily be undone by another accident of history.
True enough, but the system has worked reasonably well for a couple of centuries now, achieving a kind of dynamic stability. (And yes, I'm mindful of those Court decisions that history has rightly come to regard as, how shall I put this, less than successful, such as Dred Scott, Plessy v. Ferguson, and Korematsu.)
You're welcome to try to convince ~150 million voters and their elected representatives that a change in the arrangement is warranted. Good luck with that; in fact, good luck even getting their attention, given that all of those folks do have a few other things on their minds. Past attempts to overhaul the arrangement have never caught on and in fact have been viewed with suspicion, for example as FDR learned the hard way when he tried to pack the Court in the mid-1930s.
I see you also seem to share his predilection for ignoring direct questions the answers to which you do not like and so I shall ask you, apparently an expert, more directly:
What is the actual effect of SCOTUS setting aside as unconstitutional duly passed acts of Congress?
Before you answer consider a study of all the acts of Congress struck by SCOTUS from 1953-1997 and the current status of these statutes as summarized by J Mitchell Pickerell  Details can be found by following references in the article which any lawyer (regardless of gender) can find.
That's like asking, what is the actual effect of a thunderstorm. The answer is, it depends.
At a minimum, if a government official were to attempt to enforce a law after it had been declared unconstitutional, almost certainly someone would challenge the enforcement attempt in a lower court. (If no one cared, the law wouldn't have ended up in the Supreme Court in the first place.)
The challenge usually will lead to the lower court's issuance of an injunction prohibiting the government official from continuing with his or her attempt to enforce the law. Disobedience of the injunction is punishable as contempt -- as in, the U.S. Marshals will arrest and jail the disobedient official until the contempt is purged. (I don't have time to go into the details of the contempt process.) I can't remember that ever happening, because the Court's power to declare a statute unconstitutional is essentially universally accepted as a practical matter, even though some theorists challenge it from time to time.
Sometimes the Court rules that the unenforceability is retroactive; this can create practical problems, but institutionally the Court is fully aware of that and takes it into account.
Other times the Court will say that the unenforceability is prospective only, that is, existing actions aren't to be disturbed.
Incidentally, the article by Pickerill (not Pickerell) that you cite doesn't support your view. The article lists the various ways in which Congress has deferred to the Court's rulings, that is, acceded to the Court's authority. For example, Congress might amend an unconstitutional statute to fix the constitutionality problems, or it might repeal the statute entirely.
It was really weighing on my mind.
That is, a question not in need of an answer. Hope that helps you.
If you think there is a set of core moral values animating the country, but you don't believe the Supreme Court has the power to enforce those values, to whom are you appealing? Clearly not Congress; it's Congress that passed the law that has you yelling at me.
If you do not believe that the US Constitution and other founding documents were products of Enlightenment thinking and that natural law principles did not inform the debate then we really have nothing more to discuss. You are simply choosing to remain ignorant of the history. I do not care to grant your stipulation. There is nothing to stipulate to. You are just flatly wrong. I'm assuming you are one of those "living" document types and want to talk about what the meaning of the word "is" is. My tank full of patience for that ran out long ago.
Your reply makes no sense. Also your "yelling" comment is rhetorical grandstanding. I have barely raised an eyebrow, let alone my voice.
I also notice you failed completely to address the fundamental point regarding morality and the US Constitution with respect to slavery. Do you believe it was rational thought and not moral judgments that led to the conclusion that slaves were 3/5 citizens for apportionment?
You wrote: "The Constitution largely avoids moral concerns --- or, more precisely, values and substantive rights."
I replied that slavery is essentially a moral question and is at the very heart of the Constitution. It would not have been ratified without it.
You ignored this statement entirely in your vacuous reply.
Did that help you to see how it follows?
Really? Why is that true? Who gets to decide what's a "right" and what's a "privilege"? On what basis is that determined? What's the means by which the public can challenge those decisions?
Without appropriate answers to those questions, in what way is a society operation under those rules not a totalitarian state?
I don't like to be condescending, but come on, this stuff is in the constitution too. I feel like sometimes people just read the bill or rights and completely ignore the rest of the thing.
The Senators and Representatives shall receive a compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
Article I Section 9
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Article IV section 2.1:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State [...]
I personally don't care for textualist arguments, but the concept of privilege is explicitly mentioned 4 times in the Constitution.
EDIT: I'm getting downvoted for pointing out a fact, with citations. Impressive.
[P]rivileges and immunities....are, in the language of Judge Washington, those rights which are fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State....
Or were you claiming above that flying is one of those rights which are fundamental?
As far as the type of privilege, consider the privilege of immunity from arrest and accusations of libel etc., that members of Congress enjoy - but only within the legislature. This is a quite limited one, contingent on being a lawmaker and being engaged on legislative business. I mistakenly thought that this would be obvious from a reading of the text.
Of course I am not arguing that flying is a fundamental right. I rather describe it a privilege precisely because it is not fundamental, as observed upthread: https://news.ycombinator.com/item?id=5467700
That is probably why you got down voted - your citation is factual, but completely misleading in context.
To address the specific example you mention here: the privilege of immunity from arrest for members of Congress cannot be infringed except for specific enumerated exceptions. It's not the kind if "privilege not a right" that may be arbitrarily harshly regulated that you were talking about.
The law is not stupid. Courts understand that words have more than one meaning and that context matters. Given how rude and condescending you have been on this thread, you should learn more about how constitutional law actually works.
I can't claim the above will ever be a popular opinion (and your comment is only net negative because it's combative and so blatantly inconsistent with TSA reality), but the technologies that replace our decaying systems of social organization won't be designed by committees either.
All they did was ask why it was medically necessary, which is reasonable, in order to prevent people from abusing the policy.
His citation that the special needs memo says things like "a doctors note" are recommended, not required, doesn't say anything to the contrary. Nowhere in the memo does it say "you will not be asked to explain why it's medically necessary", and in fact, the reason they probably recommend doctors notes/etc, is to avoid having to repeat a verbal explanation 100x over.
Realistically, if he challenges this in court, he's likely to end up making bad law.
People don't like to hear that non-sympathetic plaintiffs and bad actors often cause bad law to be made, but it's reality. Judges aren't automatons, and the law isn't that rigid in most cases (which is yet another thing engineers/etc don't like to hear).
He seems to act like fourth amendment law is not open to interpretation, or that fourth amendment law has not changed over time (in fact, to his detriment, since there are a lot more exceptions related to border searches and searches used to ensure security than their used to be).
By doing this he misses the one mildly likely result: He will be the cause of a new exception to the 4th amendment.
The above comment implies that it is reasonable for TSA contractors to inquire about medical conditions. That is a huge grant of personal information no one should have to make. The above comment also makes the assumption that instead of authority proving it has a need to restrict rights, individuals must prove they deserve freedoms. It is that reversal of attitudes that scares me more than anything.
As for what is reasonable to inquire about, they can ask about a lot. This is particularly true since it's probably not a custodial interrogation, and they are clearly not asking about evidence of crimes.
You can cite "the way the world should be" all you like. I actually agree it would be a great place to live. But expecting the judicial system to transform it into that world is a dream.
I learned a lesson recently about having faith that the status quo can be changed from the tactics of the GLBT community. I had assumed that the only way to create real change would be to force change through radical action, but they expected people to act like rational caring individuals if they just went door to door, introduced themselves, and explained their way of life. This has been (to me) shockingly successful. It seemed naive, an absurd assumption that people would listen and act rationally, but to a staggering extent it has worked.
Perhaps you think our legal system is too far gone to be given the same faith, and held to similar expectations of decency, but I would disagree.
This is why you see Justice Kennedy worried about ruling on gay marriage.
It is obvious to everyone in that room that in 50 years they will likely be viewed as bigoted fossils if they rule against gay marriage (to quote the oatmeal). They aren't idiots. That doesn't mean they are going to jump up and scream that it should happen, because it's not their role in our system.
That's congress and the states.
They aren't going to be the folks who start the revolution, they are going to be the guys who say the revolution was right.
As you've discovered, change of society does not always require radical action. But change of the legal system almost always requires change of society.
When it happens the other way around, society still gets the last say. See, for example, the forced relocation of native americans, despite the supreme court ruling it unconstitutional.
1. The TSA is legally entitled to deference of its interpretations of its own regulations.
See Chevron (for statutes. Yes, they get deference to interpret the statutes congress passed that say what they are allowed to do), or Auer (for their interpretations of their own regulations).
It's ridiculous (in the case of Auer deference), but true.
However, at least right now, if the TSA says "our regulations mean X", courts give them deference that their regulations mean X, and it takes a lot to overcome that.
There is at least some hope that Auer deference will die in the next few years. Humorously, one of the justices most people here seem to hate the most, Scalia, is now the strongest opponent of Auer deference:
"For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations."
"The Court there gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, more- over, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed.
Enough is enough."
(You can also look at his earlier Talk America concurrence on this subject. http://www.volokh.com/2011/06/09/justice-scalia-questions-au... is a good reference about it)
2. Davis, which he tried to quote, says mostly exactly the opposite of what he wants it to:
"airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft."
Note, this seems innocuous at first to an outsider, but administrative searches are not subject to the same requirements as general 4th amendment searches. They only have to be reasonable, not have probable cause. In particular, later it gets you down the path to this: "To judge reasonableness, it is necessary to balance the right to be free of intrusion with “society’s interest in safe air travel.” [US v. Marquez, 410 F.3d 612]). In a fight between "society's interest in safe air travel" vs "justifying why you need a liter of juice", i know who i would bet on. Again, i think such legal rules are wrong-headed, but it doesn't change my view of the current legal state of the world.
But back to US v. Davis:
"[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly."
This is a zinger for two reasons:
1. Now, remember, the TSA, because they get deference, mostly gets to decide what is "more intensive or intrusive than necessary", and courts will defer to them, for the most part.
2. As long as they let you out by saying you won't fly, they pretty much get a free pass.
So there you go. Sucks but true.
PS The idea that searches performed by the TSA are automatically administrative, or even that there should be an administrative search exception, was also conjured up out of whole cloth by the courts, so expecting them to suddenly reverse course and apply "the full force" of the 4th amendment (god i wish i didn't have to use that phrase), is well, wrong headed. Barring the supreme court getting a grand urge to stake out a position here (which is rare), if it happens, it will happen when society is less accepting of this kind of thing, not when it is more.
FOIA for essentially all of the TSA's policy & procedures documents
which is what he plans to do? There might be no legal remedy, but certainly a "public opinion" one.
He also doesn't want to pursue anything on the grounds of their procedures or policy, but the ADA / Rehabilitation Act, and this is where all of us need to excuse ourselves into IANAL.
So, in order:
1. FOIA will get him some documents in about 3-4 years. Maybe.
It'll take a while, and he'll get the old copies.
2. The ADA filings will do nothing. the ADA specifically exempts travel by aircraft when it comes to accommodations for forms of public transportation.
It also does not say anything about US Government administrative searches.
He would actually have to try to find something under the ACA (Air Carrier Access act), and there is nothing there.
Any sane disability lawyer will tell him the above. This is all bluster for a a 1983 lawsuit, however, ....
The 1983 lawsuit is probably a non-starter on the 4th amendment side. You'd have to show the TSA's actions are contrary to clearly established federal law. At least on the facts seen so far, they aren't, and courts have generally agreed to this. If they had arrested him, maybe he'd have a 1st amendment claim like Tobey does (so far) in Tobey v. Jones. But again, even sympathetic courts so far have thrown out most 1983 actions for 4th amendment violations against the TSA.
3. I am a lawyer, actually, so I don't need to excuse myself.
I've actually even got a ADA recognized disability and have actually fought fights under the ADA.
(though, in the interest of full disclosure, my normal day job now is IP law, i have dealt with plenty of constitutional law :P)
In any case, i'm opposed for the reasons I stated in the first reply: He is, IMHO, unlikely to accomplish anything except making bad law through the above. Even his video is causing divided public opinion in this very thread. If you want to have a chance of doing something right now, you need the old disabled war vet who is being strip searched because blah blah blah.
It's certainly his right to pursue what he wants, but I personally don't see it as helpful to the cause.
So let's talk about the confiscation:
In general, during administrative functions like this, agencies are granted wide latitude, and can in fact, take stuff away for many hours with no issue. Again, remember these searches and seizures only have to be reasonable, they don't have to have probable cause.
Before the recent border search case, it was even weeks or months that they could hold stuff.
As for permanent confiscation, probably not, but they could say "junk this or don't fly"
From the agent's perspective, some guy with a camera showed up with 2L of juice, clearly not allowed, and didn't want to give any further explanation. What should he do?
As for the "split into smaller bottles", I think that's a brainfart on the part of the agent, at least around here you're limited to a couple 100ml containers.
See? All TSA achieved is horse shit. You can still end up on the other side, with a litre bottle of whatever substance you wanted to have,and they couldn't stop you. This is why this entire agency is absolutely useless and more an inconvenience than anything.
Of course, blowing up a plane is sort of a stupid notion anyway. If I wanted a terrorist attack, I'd just bomb a building directly, Oklahoma City style. That wouldn't even need to be a suicide attack. If I was dead set on a suicide attack on an airline, I'd just pick the longest security checkpoint line and blow myself up there.
There are plenty of tactical reasons for commandeering an airplane, but blowing it up is generally not one of them.
Actually, you're not allowed to bring such a bottle as I understand things. I didn't really bother scrutinizing, but the impression I got from a few years back was that even if you emptied out an over-sized container, you still wouldn't be allowed to pass it through.
Now that I think about it, I think this impression is from the fact that you can't bring a half-empty bottle (with only 100ml of liquid or whatever the amount is).
Also, I think I recall that there's a restriction on the total amount of liquid you're allowed to bring. I think it was "all of your 3.4 oz bottles have to be able to fit flat inside a X sized ziploc bag" or something like that.
Not to mention I have personally traveled with all kinds of things including Costco-sized bottles of contact lens solution and gigantic aerosol cans... it is what it is and with screening I don't see why TSA can't let people through with it.
They prohibited him from drinking juice. He asked to be allowed to drink it in front of them, and they said no. What in the fuck is anyone from anywhere doing telling anyone they aren't allowed to drink juice?
If you answer "safety" or "the law" or really anything, you are utterly, utterly lost.
This is wrong.
I actually have a very good understanding of what the law says right now. I personally think it's become seriously perverted from its original purpose, but that does not change how the law has developed, it only means we need to fix that.
As it stands right now, the government very likely has the right to demand intimate medical information from people when that intimate medical information is the reason they are citing to avoid legally enacted security rules. Again, i think this is mostly bullshit, and shouldn't be that way, but it doesn't change that it is. The supreme court and others have been very protective of border and transportation searches made for the purpose of security.
Note, btw almost any ADA claim he makes would fail
The ADA does not actually prohibit these inquiries on it's face (it would if they were made for a job related purpose), and aircraft is specifically exempted from most of the ADA's transportation requirements:
"The term "specified public transportation" means transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis."
If your hope is to get a court to decide that he won't have to justify it's medically necessary liquid, there is a roughly 10% chance that will happen (maybe less).
If your hope is for a court to decide the TSA needs actual individualized suspicion before fucking groping people, there's an even less percent chance of that happening. In fact, courts have already held exactly the opposite numerous times (due to them being held to be administrative searches)
Your best outcome here is probably that they'll require the TSA offer to ask this stuff in private, and be required to guarantee confidentiality.
At least right now, no court is likely to stop them from doing it.
They're not doing that. They're demanding a doctor's note (official communication from your doctor to people like employers, school administrators... in other words, not intimate information) only in the case that you need an exemption from the rule that prohibits you from carrying on large amounts of liquid. Should they exempt passengers from rules just for saying "naw, it's cool, it's a medical thing"?
"It is recommended (not required) that passengers bring along any supporting documentation (ID cards, letter from doctor, etc.) regarding their medical needs."
So yeah, it would likely be easier for him if he did have one, but it's certainly not something the TSA can demand.
That doesn't mean "welp, i don't have to prove shit, because i am not required to have a doctors note". It means it's recommended, but not required, that you have one.
If you don't, there is nothing in these rules that say you won't have to explain yourself.
If he had explained all the ins and outs of his illness, then what? Are they in any position to judge the necessity of him drinking sugar water? If not, what's the use of explaining it to them? They should know their own rules and act accordingly. It's unacceptable for them to make someone wait for 20 minutes while they look up what they should already know.
If I leave my leg on and walk through the metal detector, I must wait around until a male agent is available to swab me, check for explosive residue, and determine that I am not carrying a weapon. It's much more efficient to take the leg off and waddle on my knees through the metal detector.
Most of the TSA agents know me at this point, but occasionally a new person will be caught off guard. Usually, they are speechless in fear of breaking two seemingly conflicting rules: (1) don't offend, humiliate, etc. and (2) don't allow passengers to do stuff they aren't supposed to do. I see some panicked motioning to a supervisor and hear, "Oh, he comes through here all the time! ...Yes, it's allowed." Occasionally, a new agent will tell me, "You can't do that, sir!" When I reply that I've done so well over a hundred times in the past couple years, they defer to a supervisor who informs them of my "rights." [Quotes to convey the absurdity of the situation, of course.]
It is because of my experiences in hearing TSA agents make-up a rule out of thin air that I do not doubt the author of the blog posting. Interestingly, I suspect that my notoriety actually has lead to less scrutiny over time -- the frequency at which my carry-ons are hand inspected has decreased over time.
Wow, I was reading a few books on USSR lately and this is exactly how the soviet low enforcement functioned. It's very hard for servicemen to find balance between common sense and social traditions on one side and the madness of totalitarian authority.
If we are to dismantle the TSA from its core (rather than just poke holes in it every now and then for specific grievances), public education is the first step, not litigation.
As a bit of a background, I grew in a former communist dictatorship so I am familiar a bit with oppression, keeping your mouth shut, not saying the wrong thing and listening to authority. That is why I have a smell test and a perspective to compare between.
Anyone think I am off the mark completely? Obviously in this forum most people aren't but am I completely off the mark in respect to the average Joe Sixpack? What is the reason for that? Kids do learn in schools about fighting for independence from England, about Founding Fathers, etc etc. so where does blind submission to authority come from?
I have some friends in Greece who don't trust the authorities, but it had to get to a pretty bad state there for that to happen (e.g., infiltration of the police by far-right organizations).
There have been some very interesting developments counter to this in recent years, and I hope that they gain some traction. There's a program in the UK called Cognitive Acceleration  that seems to have a lot of promise for developing more of a habit of independent thinking. There's also some interesting stuff coming out of Harvard called Visible Thinking  that I believe is very beneficial.
Unfortunately, I think it will be quite a while before that kind of thing is widely adopted because of sheer momentum and the apparent drive toward ever more standardized testing.
I'm sure there are dozens of other factors that contribute to what you're talking about, but schooling is one that I recognized as having a huge impact on my own life in terms of my perception of my position relative to authority.
I can almost hear the hypothetical lesson in an American school teaching about how abusive authoritarian countries are conducting these things and everyone nods and approves as in "of course, make sense they do that, in contrast to us..."
Public education would lead to... what... mass civil disobedience against the TSA's practices? Maybe, I don't know. Fighting the TSA's de facto policies with legal battles is an appropriate response (that doesn't at all require majority public attention).
The real problem here is the difference between what people think, what people say and what people do. Everyone hates the screening process, and even the most law-and-order "nothing to fear if you have nothing to hide" Ward Cleaver type is going to see patronizing, questionable and occasionally abusive behaviour.
It can be scary to confront the idea that the government might not have your best interests at heart, and scared people are not likely to speak up unless something is happening to them.
People are herded like animals through the screening process. The entire scenario is designed to scare people into complacency and obedience. Herds are not known for thinking rationally.
In the end, there's no obvious way to get enough people in a herd to speak up. That means that people who do get frustrated and push back look like trouble makers, they are made to look like the suspicious ones. Anyone who might want to help is fighting against the fear that they too will be singled out.
It's a vicious circle experienced by anyone that flies frequently. Asking for "evidence" that people aren't upset is missing the point.
Instead of celebrating this as a victory for common sense, many commenters argued against the change, claiming it would make flights less safe (or at least feel less safe). I think these people are representative of a significant fraction of the population who think the TSA's work is both necessary and effective, and would oppose limiting it any further.
It would take a new political group to arise and challenge those in power, which isn't going to happen anytime soon. The Tea Party got branded by its kooks because both Republicans and Democrats saw the threat is posed to them. Republicans because it directly challenged them and Democrats who desperately didn't want the same to come up and challenge them from within.
So I think Americans care, but are resigned to the fact that short of a major upheaval or serious blunder by the TSA not much will change.
I keep seeing variants of this claim, but that's not my experience. Everyone I know hates it (and I'm pretty sure that some of those people are "average Americans").
Won't do any good - the TSA is here to stay, short of the government ceasing to be.
But it's a good fight, and might delay the inevitable for a while.
I hope your case is successful. Over the years TSA has caused nothing but pain, waste, and abuse without catching a single terrorist red-handed with a bomb.
In the words of a former TSA agent: “Did you know you don’t need a high-school diploma or GED to work as a security screener? These are the same screeners that TSA chief John Pistole and Homeland Security Secretary Janet Napolitano refer to as a first-class first line of defense in the war on terror. These are the employees who could never keep a job in the private sector. I wouldn’t trust them to walk my dog. [...]
Most TSA screeners know their job is a complete joke. Their goal is to use this as a stepping stone to another government agency. We work in a culture where common sense has no place. All but a very few TSA personnel know they’re employed by a bottom-of-the-barrel agency. [...]
It’s the people who’ve been there a good number of years who could never find employment elsewhere. When you have a real job, it usually means you have to actually work and think, which a lot of them have a hard time doing.”
[Most screeners] are only there for the paycheck and generous benefits. Screeners start at $15 per hour, and there is tons of overtime — mainly because they are filling in for the many screeners who don’t bother coming to work. For every 40 hours you work, you receive four hours of vacation and four hours of sick time.
One screener didn’t come to work for four weeks. When he finally reappeared, he asked for another week off. The answer was no. So what did this brainiac decide to do? He took another week off — and didn’t get terminated. People have been caught falling asleep on the job. They get written up, it’s put in their file, and that’s it.
New hires see how bad it is working there, and, believe it or not, TSA does manage to hire some pretty decent people. They just don’t last because they can get a normal job. It’s the people who’ve been there a good number of years who could never find employment elsewhere. When you have a real job, it usually means you have to actually work and think, which a lot of them have a hard time doing.”
Here's the tl;dr version: It would be better to go back to the "old days" when we could bring all kinds of unlikely things with us onto airliners. The best way to keep the public safe is not to inconvenience air travelers but to relentlessly pursue and kill leaders of terrorist networks who try to make flying dangerous and frightening rather than safe and routine. Exercise your rights by not letting terrorists change your lifestyle, and ask your elected officials to ease up on needless inconvenience for air travelers. (Please don't complain if this is brief and doesn't cover all the details; I linked to the long version.)
Best wishes to all of you for safe and dignified travel by the means of your choice.
Taking a 2 liter bottle onto the plane of store bought juice is silly no matter which way you look at it. If it were a prescribed liquid, they would have let him on no questions asked. But as far as the TSA or "their representatives" know, he's just some guy with a bottle of juice and camera. I know someone suffering as equally medically and they don't try and carry 2 liter bottles of juice onto planes, they always have backup sugar pills for when they need them and if he was nice and made his needs known to flight staff, they would have been more than accommodating to his needs on the plane opposed to risking a potential PR storm if there were to be an in-air medical emergency.
This is incompatible with juice just being silly - unless they test both the prescribed liquid and the juice for absence of explosives, they have no way of knowing that the liquid in a prescription bottle is in fact a prescribed liquid.
Do you think terrorists just wouldn't think of labeling their mythical liquid explosives? Or do you implicitly believe that defying authority is what is "silly"?
It's clear by the video, he was trying to troll TSA rather than get through security with his medical liquids.
He can't expect to not justify and explain why his liquids are considered medical. Otherwise, every person who paid $4.50 for a soda before security would just pull the "It's medical! You can't ask questions card"
Yes, he absolutely can. The TSA has absolutely zero right to interrogate him about any medical conditions he may have. Medical information is extremely private and none of the TSA's business.
And that's exactly how people see americans, by the way. Some random dudes try to piss of a bunch of people, and maybe make some money in court, because a document, law, whatever didn't specify something that was common sense.
Then you end up with ridiculously long documents that attempt to cover every single tiny case - and of course, generally taking the road "against" the consumer, customer, whatever - because it's _safer_.
So yeah. By watching the video, the guy does appear as a douche. He should just ask TSA to make their papers clearer about the policy. He could also split his liquids into smaller liquids or just bring the doctor note. But nooope.. let's piss off TSA to "make a point". Except, it's not a very good point.
For the record I travel through the US every now and then, and I bring sensitive items, that always get scanned, but always go through. I sometimes even get this little "TSA inspected this bag" from checked-in luggage due to the contents.
Never had any issue. But such behavior, I fear, actually work toward restricting all items I travel with, and thus, effectively forbidding me travel with those in the future.
This isn't actually true, and you'd see that if you watched the video all the way through. Part of the treatment is the weight of the liquid container.
It actually can be. My father has a doctor's note effectively saying that he's using soda/juice for medical reasons, just so TSA can leave him alone. He's almost never been asked for that note too, most of the time TSA doesn't give a crap as long as the liquid gets tested and is "safe". I really don't understand why he has to explain this to TSA at all cause it's none of their fucking business, but that's how things work (and by god I wish they'd change).
FWIW the only reason the note exists at all is because a bottle of juice or soda that my dad likes is far cheaper than the legally prescribed "medical use" labeled juice that you can get, and works just as well.
OP: In a patronizing tone: "You're required to accept it, and to screen it. You have the means available to screen it, namely xray and explosive trace detection"
TSA: "Sir, where are you going?"
OP: "That's none of your business"
Why? Aren't they trained to deal with all kinds of people and types of behavior, like anyone in a customer facing profession? If I go to an Apple Store to buy a product while I'm in a bad mood and don't feel up for chit-chat, the sales rep isn't going to make me play nice.
Also, I think Sai was very courteous and patient, given the situation. He obviously knew that if he had actually raised his voice or made a scene, he'd be giving them an excuse not to cooperate. Nonetheless, in the video one of the TSA agents told him to calm down while he was clearly quite calm. That's the kind of shenanigans we see again and again from the TSA.
1) "It's none of your business. I'm going to start recording you to make sure you handle this situation legally"
2) "I'm just rolling a cigarette. Don't worry it's not weed!"
Although most people don't like answering to authority, especially when they aren't required to, option #2 is the path of least resistance. That said, I do respect people like the OP who take the first approach and challenge authority.
You're walking in a busy area and a pair of cops stops you and asks you to show your ID and the contents of your bag.
1) Show the ID (which you're required to in this country, if you're a non-citizen), but not the contents of your bag. 1a) Optionally, ask the policemen's ID and write down their names.
2) Show both the ID and the contents of your bag.
This happened to me a while ago, in Tokyo. Apparently most people do #2. The cops were very surprised that I chose option #1a. It took 15 minutes for them to give up. Apparently most people either don't know that cops cannot search you without probable cause, or they know but don't care. I don't think you need to be particularly courageous to say "no" to a cop, when it's your right to do so and you live in a place where the law is upheld.
Incidentally, I would never antagonize a TSA person or an US immigrant officer like that, as I have no idea of what laws (if any) would protect me, as a non-citizen.
This depends entirely on how much faith I have in the cop's capacity to operate within his legal boundaries.
It's not a hidden camera. He tells them he's recording.
It's not okay to mischaracterize the situation.
FYI, "Covenant Aviation Security, a private company under contract with the Transportation Security Administration (TSA), provides passenger and baggage screening at SFO." Per http://www.flysfo.com/web/page/atsfo/saf-sec/
The serious problem I see here is that even after he indicated he is not able to talk to them they refused him to use pen and paper. I also have a speech impediment and carry those with me. Taking them away and not letting someone use them when they are already frazzled and upset is like asking someone in the wheelchair to just "stop being a pussy and get up and walk" or accusing them of "being uncooperative".
Furthermore, he's attempting to advocate for others who may also not want their disability known. He gives up his privacy in a certain setting in order to (hopefully) allow many others to never have to give up theirs.
Speech by choice is very different than being unlawfully questioned and to have your possessions, medical liquid or otherwise, held hostage contingent on your reply.
As far as reasonability - he's correct in noting that the TSA is not entitled to your medical history. Moreover, TSA screeners are generally not doctors (some may be), they're not YOUR doctor, and they're certainly not in a position to decide what is or isn't medically necessary for you.
Does this mean that you should be able to get your juice past security by claiming to have a medical condition? No.
It means you should be able to do that without having to disclose anything about your health, and the only remedy that should be available is for the TSA to screen the liquid if they feel it is necessary to ensure passenger safety.
Is that unfair? Maybe, but so is a ridiculous ban on a liter bottle of safe substances.
On the other hand, in your own forum while making a point, it makes perfect sense to use that context to explain why it was embarrassing and is in need of proper training or policy modification.
Look at the good that the EFF and Creative Commons have done. It's time for people to reclaim their freedom of movement.
FWIW, I'm Canadian and I would sign up for a regular donation if such an organization existed. That's how frustrated I am by the global chill that the TSA/DHS has created, all without a single documented terrorist caught.
repel then some incident happens that can be somehow associated with this - it's a catastrophe even if the association is completely superficial, the media will manage to spin it to cause enough damage.
repel then nothing happens - there is a minor positive outcome but incumbents already have an overwhelming advantage.
don't repel - there is a minor negative outcome but incumbents already have an overwhelming advantage.
Until incumbents start routinely losing elections repelling any "safety" regulation is the worst move you could make. There is very minor upside and a huge downside.
So we will have to keep our kindles showing the splash screen while the plane is waiting at the gate and throw out toothpaste at the TSA checkpoints. Any possible relief will come either from the money pressure (e.g. confiscation of lighters apparently had been interfering with the airports operation so much that it had to be repelled) or political stunts (e.g. Obama showing the terrors of sequester by allowing pen knives and hokey sticks on-board).
I could probably write an essay on the number of moral abuses I've seen in airports, from the typical inappropriate "you need to calm down" to seeing people in clear medical or mental distress (gladly few, but some of these experiences being mine).
We would never expect this sort of behavior anywhere else in society, yet we're letting this go on as if it were normal. I personally wonder how this is even legal, but I suppose that's beyond the point. This may be an overused quote, but "those who sacrifice freedom for security deserve neither" rings very true in this instance.
How is oppressing the vast majority of flyers any better than the terrorism we are supposedly preventing? I would even go as far as saying that this sort of behavior is most likely what encourages terrorism in the first place, but I digress.
Airports are one of those far-too-regular cases where "you're guilty until proven innocent" has become the norm. Anybody in their right minds know full well that if somebody really wants to make anything happen on a plane, it will. It's clear that restrictions against foods, liquids and whatever else are more about perceived security than actual security (also very possibly about purchases...).
I truly understand the reason (beyond medical) the OP was driven to shoot that video. People saying he was picking a fight may or may not be right. Similarly, his legal reasoning may or may not be biased. But that's not the point, the law is there to protect freedom, not obstruct it.
I just hope he is correct in his legal interpretations.
First off I want to stress: I complied 100% with TSA policy. They did not. Yes, I politely but firmly insisted on my right to privacy. That doesn't mean I have any less right to travel with medical liquids.
But… I might as well answer some of the specific issues brought up, so here goes. My apologies if I've missed something, and I'm not going to full case citations etc here in comments (sorry).
I'll try to come back later to try another summary comment, but I have to sleep (and go househunting tomorrow), so I won't be able to do point-by-point responses on everything.
1. FOIA vs lawsuits
They're separate things. I'm pursuing the policies & procedures FOIA because I think the public has a right to know what the TSA is doing, and what they demand that you do. Something as basic as their current screening management SOP is not currently public, which IMO is unacceptable.
(Not to mention that courts have found that the TSA is in violation of the Administrative Procedures Act for failing to actually give the public a say on whether to institute electronic strip searches as their primary screening tool, but that's another issue… see EPIC v TSA for that one; it's not my fight.)
I do expect that some of the documents I obtain via FOIA will also help me personal cases, but that's just a bonus. I have separate FOIA requests dealing with my own cases.
I should also note that I have not yet filed civil suit against the TSA — I'm doing what I'm supposed to, namely giving them a chance to handle it administratively first. I've done everything that I can to handle it amicably. So far, they're refusing to cooperate. Continued refusal is what would trigger a civil suit.
2. Administrative law etc
Yes, the TSA has the right to deference in interpretations of the law that it regulates. However, the Davis standard is an interpretation of the 4th amendment by the courts, one that's been repeatedly upheld, and which limits the TSA's purview. In Bierfeldt, the TSA settled — because they admitted that subjecting someone to search based on carrying a lot of money is not something they're allowed to do.
In particular, the TSA does not get to interpret the 4th Amendment; courts do. The TSA gets to interpret only their own administrative law, not to decide what is "reasonable".
I actually support the Davis standard; I agree that the TSA should have a limited exemption for administrative searches narrowly tailored to the search for weapons or explosives (and not for e.g. drugs, money, juice, documents, etc). I agree that that very narrow scope of search "reasonable", and that it doesn't require probable cause or suspicion.
However, in both of my incidents, there simply was no question of weapons or explosives. The SFO liquids had been thoroughly screened and were denied anyway; the BOS bags were x-rayed and then subjected to search of documents, which the TSA is forbidden from doing (see e.g. Aukai, Fofana, Bierfeldt).
Re. choice of law: it's arguable whether the ADA applies, but the Rehabilitation Act is more or less equivalent here. Same goes for Bivens vs 42 USC 1983. I didn't get into every legal nicety here; that's what a formal pleading is for, not a summary webpage & youtube clip. :-P
Also, this wasn't a border search — I was flying within the US. And the TSA is not authorized to search or seize anything other than weapons or explosives.
What it comes down to is simple: juice is not a weapon or explosive.
The TSA has absolutely no authority to seize it, when they are capable of telling the difference between juice and explosives, which they are (and did). Questioning me about my medical information has no bearing whatsoever on whether they can distinguish juice from an explosive, and therefore it is not permitted under the Davis standard.
3. Liquid limits
I don't think I can do anything but quote the TSA's own policy here:
"Medically necessary liquids are allowed through a checkpoint in any amount once they have been screened." http://www.tsa.gov/traveler-information/medically-necessary-...
There is no limit on medical liquids. Period. There is no ambiguity in that statement, and it's not just my interpretation.
And the Special Needs Memo says clearly that juice (and water!) is a medical liquid.
As for why I travel with 3L of liquid: it's a cross country flight. Flights get delayed; I've occasionally had to stay overnight in an airport. I need to drink on a very regular basis. I carry enough liquids with me to ensure that I'm covered for contingencies. (I also carry with me extra food, snacks, etc. I don't want to be dependent on airport concessions for things I need to stay healthy.)
Splitting it into separate 3 ounce bottles is absurd, irrational, and not something I could even do. (Who carries a bunch of empty 3 ounce bottles to drink from? O.o)
BTW, there's no such thing as a "prescription" for juice. It's doctor recommended, but you buy it in a grocery store, and you buy whatever sort you prefer. I happen to prefer aloe vera 'cause it's soothing.
4. Is juice medical for me?
Frankly, that's none of your business. And it sure as hell isn't the TSA's. They aren't HIPAA compliant, medically trained, or anything of the sort. Their job is simply to screen for weapons, not to determine medical necessity.
I did discuss this with my actual neurologist, who did recommend that I have juice on hand.
Why aloe juice in particular? My three favorite juices to travel with are aloe juice, Odwalla Superfood, and strong ginger beer. I find that they help alleviate side effects like nausea, while ensuring that I have about the right amount of sugar in easy form. I don't claim that any of them are specifically anticonvulsants or the like; they're just the juices I prefer to use.
5. Why not just give up my liquids and/or tell them medical info?
Because it's a violation of my 4th amendment rights, and because the law (including TSA rules) do not require me to do so. (Not to mention, they're not HIPAA compliant…)
I tried to be extremely polite throughout, even though I was pretty angry. I don't think that yelling helps anything. But there's a big difference between being polite, and giving in to an unlawful demand.
I don't believe that I should have to give up my privacy or my ability to bring with me liquids of my choice. Their job is simply to make sure that what I bring isn't an explosive, and I totally support that. If they want to x-ray, ETD, LCS scan, whatever, I'm perfectly cool with it.
What I'm not cool with is the intrusive questions or the seizure of something that's not a weapon.
Yes, I could probably have gotten through this situation easier if I had just given up my right to privacy. But I would rather change the system by standing up for all my rights, so that nobody has to get harassed and coerced, than get by one particular incident.
Yes, under the law they're allowed to ask — just like cops are allowed to "ask" to search your car and you're allowed to tell them "no". I find both "requests" to be offensive attempts to intrude on someone's privacy, and I choose to say no.
Honestly, I shouldn't have to even out myself as disabled in the first place, let alone be subjected to medically ignorant scrutiny about the legitimacy of my disability or the things I use to alleviate it.
They can and should simply test whether or not my stuff is dangerous.
Yes, the people screening me up through the assistant manager were all Covenant employees. TSM Smith was not, nor was DFSD Adams.
Regardless, they are TSA agents, uniformed as such (co-branded with Covenant) and with all the same duties / responsibilities. There are some minor technical differences about how it falls out legally, but it isn't really relevant to any big picture questions, so I didn't bother to mention it.
7. Looking for a fight?
As I mention on the website, I've had similar things happen to me many times before. This time I came prepared to document it.
I followed the letter of the law, I was courteous. I demanded that they follow the law too.
I don't think that in any system that truly obeys rule of law those actions should be considered "looking for a fight". If they obeyed the rules, there would have been no problem. They didn't. My response to that was as measured as it could be without giving up my rights.
Nowadays I only fly to the US if I absolutely have to. Being treated as if you're a criminal and having seen how the US border control shouted at a woman in a wheelchair and made her cry was enough for me to choose other holiday destinations in the future, where you are more welcomed as a tourist.
The OP cites a series of violations of law, followed by his complaints, followed by further violations of law in relation to his complaints.
There is a pattern here, and it is not one that can be fixed by further appeals to the State to obey the law.
This takes less time than arguing over a 2 liter of aloe juice and ends any inquiry there without violating privacy.
That having been said, I don't think it's the best solution, but it seems to be a minor improvement in most cases, and a very big one in a few others.
I'd be fine if they want to change the limit. My point is simply that they should test the liquid for whether it's an explosive or not, rather than limiting non-explosives you can carry or who can carry them.