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Problems with the TSA

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Re: Problems with the TSA

#211

Post by shawn-butler »

dctoedt wrote: post #210
shawn-butler wrote: post #197

Earlier quoted context omitted.

a) "Um, no", but times a thousand! b) Quibbling? Have you ever practiced law or been involved in it? If not, prepare yourself; you are in for a frustrating experience. What you call quibbling is what you pay several thousand dollars an hour for. That is the essential function of the legal profession. To quibble. However, it is not "quibbling" to state that SCOTUS has no power of judicial review granted in the US Cons…

> Have you ever practiced law or been involved in it? As Thomas correctly notes below, yes; that's how I earn my crust. (A lawyer would have looked that up for herself.) > The judiciary has no real power other than that of apparent authority. That's not exactly stop-the-presses news. Lawyers generally are taught it during their first week of law school, just in case they missed it in their college Government 101 cour…

Great I'm glad you agree with me on the facts. They are hard to disagree with. You and your friend "Thomas" can discuss the matter on your own on why he fails to do so.

I see you also seem to share his predilection for ignoring direct questions the answers to which you do not like and so I shall ask you, apparently an expert, more directly:

What is the actual effect of SCOTUS setting aside as unconstitutional duly passed acts of Congress?

Before you answer consider a study of all the acts of Congress struck by SCOTUS from 1953-1997 and the current status of these statutes as summarized by J Mitchell Pickerell [0] Details can be found by following references in the article which any lawyer (regardless of gender) can find.

[0]: http://apps.americanbar.org/publiced/constitutionday/Supreme...

Re: Problems with the TSA

#212

Post by dctoedt »

shawn-butler wrote: post #211
dctoedt wrote: post #210

Earlier quoted context omitted.

> Have you ever practiced law or been involved in it? As Thomas correctly notes below, yes; that's how I earn my crust. (A lawyer would have looked that up for herself.) > The judiciary has no real power other than that of apparent authority. That's not exactly stop-the-presses news. Lawyers generally are taught it during their first week of law school, just in case they missed it in their college Government 101 cour…

Great I'm glad you agree with me on the facts. They are hard to disagree with. You and your friend "Thomas" can discuss the matter on your own on why he fails to do so. I see you also seem to share his predilection for ignoring direct questions the answers to which you do not like and so I shall ask you, apparently an expert, more directly: What is the actual effect of SCOTUS setting aside as unconstitutional duly pa…

> What is the actual effect of SCOTUS setting aside as unconstitutional duly passed acts of Congress?

That's like asking, what is the actual effect of a thunderstorm. The answer is, it depends.

At a minimum, if a government official were to attempt to enforce a law after it had been declared unconstitutional, almost certainly someone would challenge the enforcement attempt in a lower court. (If no one cared, the law wouldn't have ended up in the Supreme Court in the first place.)

The challenge usually will lead to the lower court's issuance of an injunction prohibiting the government official from continuing with his or her attempt to enforce the law. Disobedience of the injunction is punishable as contempt -- as in, the U.S. Marshals will arrest and jail the disobedient official until the contempt is purged. (I don't have time to go into the details of the contempt process.) I can't remember that ever happening, because the Court's power to declare a statute unconstitutional is essentially universally accepted as a practical matter, even though some theorists challenge it from time to time.

Sometimes the Court rules that the unenforceability is retroactive; this can create practical problems, but institutionally the Court is fully aware of that and takes it into account.

Other times the Court will say that the unenforceability is prospective only, that is, existing actions aren't to be disturbed.

Incidentally, the article by Pickerill (not Pickerell) that you cite doesn't support your view. The article lists the various ways in which Congress has deferred to the Court's rulings, that is, acceded to the Court's authority. For example, Congress might amend an unconstitutional statute to fix the constitutionality problems, or it might repeal the statute entirely.

Re: Problems with the TSA

#213

Post by tptacek »

javert wrote: post #206
tptacek wrote: post #183

Earlier quoted context omitted.

I think you pulled "the government doesn't follow the 4th Amendment" out of the air. The First Amendment is written in remarkably clear language. "Congress shall make no law". Every court that has confronted the First Amendment has pointed out that there's very little wiggle room in it. And yet there is room to maneuver in the First Amendment . You can't yell "fire" in a crowded movie theater; you can't stand outside…

What constitutes "unreasonable"? IANAL, but presumably, it would be doing something without having a good reason to do it, which is what's happening here. (Looking back, this looks sarcastic, but I didn't mean that sarcastically.) Under your way of looking about it, that whole amendment is completely worthless, because "reasonable" is anything. > balance the needs of the state against those of the people There is no…

The entire definition of "unreasonable" can be distilled to balancing, for any given circumstance, the privacy interests of the searched against the state's interests. Similarly, it's not productive to litigate whether the state properly has interests. This one, based on a couple hundred years jurisprudence, does: the state's interests include law enforcement, national security, and the safety of its citizens.

You could then easily come up with a scenario in which a roadside search was lawful. For instance, SCOTUS has found some roadside sobriety checkpoints to be lawful (I am perhaps even angrier about sobriety checkpoints than I am about the TSA!)

These aren't controversial points and they aren't points I made up.

I feel like I have to keep saying this in every comment: there are more ways for laws to be wrong than "unconstitutional". I think the TSA is a farce and that it's offensive to core American values. But it's a farce that Congress was within its rights to create.

Re: Problems with the TSA

#214

Post by tptacek »

javert wrote: post #207
tptacek wrote: post #182

Earlier quoted context omitted.

Your conception of the Constitution's place in moral arguments is unfounded. The Constitution largely avoids moral concerns --- or, more precisely, values and substantive rights. What the Constitution cares about are the "constitutive" issues: the procedural rights that ensure that all citizens have access to the political process and to the same dispute resolution mechanisms, and that attempt to ensure (as best any…

I agree with most of what you said, and I think you are misunderstanding what I said because the context got complicated. So let me recap, in a nutshell. Someone said that flying is a privilege. I said, no, it's not. He said, yes it is, because that's what the Supreme Court has ruled. I said, no, that's irrelevant: I'm making a philosophical point that would hold in _any_ country. The Constitution/Supreme Court is no…

The issue isn't that flying is a revocable privilege. I agree with you that it isn't. The issue is that any moment, you have the ability to present yourself or not present yourself for a TSA safety screening at an airport. The TSA search is thus discretionary. The TSA is not allowed to seek you out, and they aren't allowed to pick you out of a crowd at the airport while allowing everyone else to go to the gate unmolested.

As a result, TSA searches meet the tests for "administrative searches", just like courthouse searches do.

You & I probably agree that there is a moral imperative to respect people's privacy, and that the state has a moral imperative to minimize searches. My argument certainly isn't that there's no such thing as "morality", nor is it that your moral evaluation of TSA searches is wrong (again, I find them grossly offensive as well). All I'm saying is, the immorality of TSA searches does not make them unconstitutional; the Constitution defers most of morality to the legislature, and has often been an umbrella protecting immoral laws.

Re: Problems with the TSA

#215

Post by trhtrsh »

bisrig wrote: post #106
coin wrote: post #86

Earlier quoted context omitted.

Here we go again, another "flying is a privilege" argument. Flying is a right: " A citizen of the United States has a public right of transit through the navigable airspace." From http://www.law.cornell.edu/uscode/text/49/40103 I choose to exercise that right by hiring air travel with an airline. Airspace is a public resource that belongs to everyone.

I think you are confusing the right to public transit with the right to transit with any commercial carrier through any engagement of your choosing... Which is unfortunate, because I agree with your point but I don't think the law backs you up here.

So, I have a right to fly, and American Airlines has a right to fly, but the two of together lose that right?

Re: Problems with the TSA

#216

Post by rhizome »

javert wrote: post #79
rhizome wrote: post #47

Earlier quoted context omitted.

And Americans complain about nationalized industries in other countries.

Which is fine, as long as a given _individual_ is consistent. For example, I complain about non-retaliatory coercion wherever I see it, including nationalized industries in other countries, the TSA, and US government-granted monopolies to telecom companies. America is an _extremely_ diverse place, and generic online American-bashing just isn't appropriate (despite being quite popular), so please try to avoid it.

I believe that there are governmental-media tendencies that create institutional criticisms rooted in hypocrisy. See also: stereotyping and bigotry, and as an example I would say the US's unified message that nationalizing oil in Venezuela was bad is an example of this kind of bigotry.

I'm also a lifelong Californian, so follow your own advice regarding diversity when condescending that my criticism necessarily depends on regional ignorance or outsiderism.

Re: Problems with the TSA

#217

Post by BHSPitMonkey »

bandwevil wrote: post #109
BHSPitMonkey wrote: post #78

Earlier quoted context omitted.

> TSA contractors have absolutely no right to demand intimate medical information from people who simply wish to travel through the air. They're not doing that. They're demanding a doctor's note (official communication from your doctor to people like employers, school administrators... in other words, not intimate information) only in the case that you need an exemption from the rule that prohibits you from carrying…

It states very specifically in the memo he refers to: "It is recommended (not required) that passengers bring along any supporting documentation (ID cards, letter from doctor, etc.) regarding their medical needs." So yeah, it would likely be easier for him if he did have one, but it's certainly not something the TSA can demand.

They can't demand it, but they also aren't obligated to let him through unless it is evident that he meets the condition for the exemption. If it's not evident that he's eligible, how can it come to pass?

Re: Problems with the TSA

#218

Post by [deleted] »

thezach wrote: post #146
DannyBee wrote: post #56

I was with him until I watched the actual video, where he basically comes off like a guy deliberately looking for a fight who gets one. He tries to pull the "i don't have to explain why it's a medically necessary liquid, you fuckers should screen it". All they did was ask why it was medically necessary, which is reasonable, in order to prevent people from abusing the policy. His citation that the special needs memo s…

Actually its illegal to request a passenger to identify his or her disability to a TSA security checkpoint or require proof of the disability.

[deleted]
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