Cato Institute to TSA: Stop the Foot-dragging on Notice-and-Comment for Naked Body Scanners

The Cato Institute’s Jim Harper has announced a Whitehouse.org petition to make the Transportation Security Administration comply with the D.C. Circuit’s mandate in EPIC v. Department of Homeland Security [pdf].  It has been nearly a year since the court held that the so-called naked body scanners installed at airports do not violate the Fourth Amendment but ordered TSA to “promptly” cure its failure to conduct notice-and-comment rulemaking.  

Harper says, “The response we want is legal compliance. The public deserves to know where the administration stands on freedom to travel and the rule of law. While TSA agents bark orders at American travelers, should the agency itself be allowed to flout one of the highest courts in the land?”

From the D.C. Circuit’s Opinion:  

In sum, the TSA has advanced no justification for having failed to conduct a notice-and-comment rulemaking. We therefore remand this matter to the agency for further proceedings. Because vacating the present rule would severely disrupt an essential security operation, however, and the rule is, as we explain below, otherwise lawful, we shall not vacate the rule, but we do nonetheless expect the agency to act promptly on remand to cure the defect in its promulgation.

. . .

None of the exceptions urged by the TSA justifies its failure to give notice of and receive comment upon such a rule, which is legislative and not merely interpretive, procedural, or a general statement of policy.

Electronic Privacy Information Ctr. v. Dep’t of Homeland Sec., No. 10-1157 (July 15, 2011) (Ginsburg, J., joined by Henderson & Tatel, JJ.)

See also:

  • To Vacate or Not to Vacate? How to Handle Unlawful but Potentially Redeemable Agency Action, D.C. Circuit Review (June 11, 2012)
  • Jim Harper, Strip-Search Machines: A Loss Seeds the Win, Cato@Liberty (July 19, 2011) (“When the TSA does a rulemaking, it will have to lay out its strip-search machine policies and—crucially—justify them. . . . The TSA will have to exhibit how its risk management supports the installation and use of strip-search machines. How did the TSA do its asset characterization (summarizing the things it is protecting)? What are the vulnerabilities it assessed? How did it model threats and hazards (actors or things animated to do harm)? What are the likelihoods and consequences of various attacks? Risk assessment questions like these are all essential inputs into decisions about what to prioritize and how to respond.”).
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