It is hard to believe but Federal agencies are not supposed to be able to create new laws at whim and require the American people to obey them. There is a procedure set out that allows proposed rules to be reviewed and commented upon.
According to the blog of the Competitive Enterprise Institute,
The Transportation Security Administration (TSA) uses more than 700 full-body imaging scanners in 160 airports nationwide. In addition to the empirical evidence that shows they don’t actually make us safer and the questions on the intrusion of traveler privacy, the TSA is violating the federal Administrative Procedure Act. Next Tuesday, June 24, marks the one-year anniversary of the public comment deadline on body scanners and the TSA is still failing to comply with federal law and a federal court’s order.
Why is this important to the average citizen? The TSA’s scanners inconvenience travelers, provide few if any safety benefits, and face high deployment costs. The limited data available suggest body scanners are a completely inappropriate airport security tool and should be scrapped in favor of more effective and less intrusive security measures. Given this, the TSA’s thumbing its nose at the rule of law is especially troubling.
The Administrative Procedure Act, which governs how federal agencies create regulations like airport body-scanners, states that agencies must publish a notice of proposed rulemaking in the Federal Register and solicit public comments before promulgating a rule. TSA failed to do this and has been flouting the law for years.
The Electronic Privacy Information Center (EPIC) and then the Competitive Enterprise Institute have taken the TSA to court to force them to comply with the law. The court ordered the TSA to publish a rule for public comment. The TSA did not obey this request.
On March 26, 2013, the TSA finally proposes their rule and opens the required comment period. However, it fails to comply with the court’s order to produce a legislative rule governing the use of body scanners in airports. Instead, the TSA proposes a brief, open-ended amendment to their screening regulations that essentially states the TSA might have body scanners and, if it does, it may use them. This is a far cry from the legislative rule the court ordered to be produced in 2011, a rule that should have included details related to the rights and obligations of affected parties. The TSA also fails to justify their rule on benefit-cost and risk-based grounds and classifies other supposed justifications for no apparent reason.
Of course the real problem here is that practically no one has the power to rein in these Federal bureaucracies. The law is simply not enforced when it comes to them. Court cases take years and then, if the Federal agency ignores the court, the only recourse is to take them to court again. The TSA can do what it wants, and the TSA knows it.