Wednesday, March 2, 2011

Legal analysis of TSA's constitutionality

While I disagree vehemently that the TSA is acting constitutionally, I do agree with the analysis here that “the courts are going to be quite deferential" to the TSA's policies in any case brought up on these grounds. These cases are fighting the government in the government's own courts, so the deck is stacked against freedom-lovers from the start. For one thing, in constitutional law there is a precedent for exceptions to the 4th Amendment based on "administrative" or "public safety" grounds:
“I would expect the courts are going to be quite deferential. They don’t want it on their hands if a terrorist gets through and causes mass deaths,” said Renee Lerner, a George Washington University Law School professor. “This basically falls under a public-safety exemption to a warrant requirement." ... “The Constitution says you won’t be searched without probable cause. Of course there is an exception for that with administrative searches,” [legislative counsel for the ACLU, Chris Calabrese, said.] “There does reach a point we have to ask ourselves how far down the technological path do we want to go in chasing the next technique?”
 For reference, here is the complete, unabridged text for the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.