At times the judges also expressed concerns about how far TSA can go. Judge David Tatel wondered whether the impact of body scanners on travelers is so severe that the public should have been able to comment before the scanners went into primary use. Tatel and Judge Karen Henderson questioned whether the TSA would be within its authority to determine one day that the security threat required that all passengers be strip searched.
Brinkmann said TSA could make such a determination without public input, as it did with the body scanners. But she said both are subject to the court's review, and in the case of the strip search, "I think you'd have an overwhelming Fourth Amendment claim."The lawyer is implying, of course, that there is not an overwhelming 4th Amendment claim in the case of the scanners. Let's hope the judges disagree, but I'm not very optimistic.