In a gesture that the phrase "so you don't have to" doesn't begin to cover, I spent the morning listening to oral arguments in the case Gilmore v. Gonzalez at the U.S. Court of Appeals for the Ninth Circuit. If you are any kind of Reason reader, you're already familiar with our extensive coverage of Gilmore's suit, which is essentially a Fourth Amendment challenge to a government requirement that you have to show ID before boarding an airplane for domestic travel.
Most of today's arguments turned on various points tangential to the central argument. In particular, there's a jurisdictional question about whether the Ninth Circuit should be hearing the case. Both sides argued that the case should be remanded to a "lower court" (presumably the Northern District of California, which dismissed the case last year), though Department of Justice lawyer Joshua Waldman held out the option of the Ninth Circuit's deciding the case on the merits. The interesting part is that the jurisdiction brouhaha arises from the question of who is actually ordering the ID check. The Transportation Security Administration claims it gave an order to demand IDs to the airlines on the authority of Congress, but Congress has not actually issued any law requiring ID checks. Gilmore's lawyer, James P. Harrison, argues that that requirement hasn't been made public and is effectively a secret law. Waldman counters that there are many cases where we accept a "legal fiction" that something is in the U.S. Code, that ID requirements are prominently posted at airports, on the TSA website, etc., and that everybody in the courtroom (except Gilmore, who was signed in by his lawyer) had to show ID to enter the building.
I have problems with all those arguments, but I also think Gilmore should consider getting a new lawyer. Harrison didn't strike me as terribly well versed in the case law around this issue, and fatally tried to up the dramatic effect with raps on the podium and skylarking about the dangerous road America is on. To every question on what the Fourth Amendment implications are of this kind of ID search, he kept declaring simply that this is an administrative search. I figured this was some piece of legalese that the judges understood better than I did, until this exchange with Judge Stephen Trott:
Trott: Is there a case that says asking for ID in a public setting constitutes a search?
Harrison: This is part of an administrative search, your honor. It clearly is.
Trott: Well, thank you for answering my question! I assume you're saying there are no cases.
After this, Harrison summed up by saying, "Air travel crosses, y'know, borders, oceans. It is not replaceable. So it requires special stuff."
On the courthouse steps after the hearing, one of the pro-Gilmore cranks (whose number I would estimate at about a score) spelled out the distinction Gilmore's attorney did not: That the Hiibel decision made a distinction between having to identify yourself verbally and having to produce a piece of identification, which constitutes a search. (I don't vouch for the details of any of this stuff, just that he seemed to have an argument.)
Just as that guy finished up, one of those lively local characters who mill around downtown public buildings, wearing a blue plastic helmet and an amazing technicolor dreamcoat, got everybody's attention by piping up: "Saddam Hussein! Saddam Hussein said he don't recognize the authority! Ha ha ha!"
Also, Gilmore gave me a "Suspected Terrorist" button.