Holiday travel Hall of Shame: TSA edition

|The Volokh Conspiracy |

Air travelers from Illinois, Missouri, Washington state and New Mexico may soon face added scrutiny from the Transportation Security Administration. As the New York Times reported Monday, the TSA may stop accepting driver's licenses from those four states as sufficient photo identification at airports because they fail to meet the requirements of the "REAL ID" Act. Restrictions on IDs from other noncompliant states could follow soon thereafter.

Under the 2005 REAL ID Act, federal agencies are supposed to accept only those state-issued identification documents that meet federal standards. This requirement is already enforced for entry into some federal installations, and now the TSA is making noises that it could begin to follow suit. According to the Star Tribune, the federal government just rejected Minnesota's request for an extension of the deadline for compliance.

The federal government cannot force states to adopt the REAL ID Act's requirements for "secure" identification. Such commandeering of state governments is clearly prohibited under New York v. United States and Printz v. United States. The federal government can, however, put pressure on states. This is often done by threatening to withhold funds for state programs. Here, however, the leverage comes from threatening to make air travel far more inconvenient for a noncompliant state's citizens. According to the NYT report, the TSA will release a schedule for rejecting noncompliant state IDs in the coming days.

The threat to gum up air travel for millions of Americans is not the TSA's only ignominious act this holiday season. Just before the start of holiday travel, the TSA quietly revised its protocols concerning when passengers may opt out of full-body scans at airport security. According to the TSA, "While passengers may generally decline AIT screening in favor of physical screening, TSA may direct mandatory AIT screening for some passengers as warranted by security considerations in order to safeguard transportation security." Although this policy change had the potential to affect many air travelers, the TSA did not issue a press release announcing the change, nor did it make any mention of the change on its blog. The change did, however, eventually attract notice from news organizations, such as USA Today and CBS News.

The policy change is particularly concerning to some because the TSA has never finalized its rules concerning the use of full-body image scanners as required by federal law. Although the TSA began installing the body scanners in 2007, it never completed a notice-and-comment rulemaking or issued a final rule concerning the scanners' use. This prompted a lawsuit from several public interest groups, who maintained that the TSA's failure to follow standard administrative procedures was unjustified and unlawful. In 2011, the U.S. Court of Appeals for the D.C. Circuit agreed. Although the D.C. Circuit rejected arguments that the use of such scanners was unconstitutional, it concluded the TSA violated the Administrative Procedure Act in adopting the relevant airport security protocols. The D.C. Circuit allowed the TSA to leave the body scanners in place, but ordered the agency to conduct a notice-and-comment rulemaking.

Fast forward to 2015, and the TSA had failed to do much of anything in response to the court ruling. This prompted another lawsuit. In October, a federal district court ordered the TSA to get moving. And now, before the TSA has truly begun (let alone completed) the required notice-and-comment rulemaking, it's seeking to force more air travelers to submit to these costly and not particularly cost-effective screening devices.

It's no wonder that the Cato Institute's Jim Harper calls the Department of Homeland Security the "Department of Chutzpah."