Freedom to Travel USA to SCOTUS re TSA

On behalf of Freedom to Travel USA, I am pleased to announce that the amicus brief we submitted to the Supreme Court on behalf of Jon Corbett has been docketed. You can see the notice here and FTTUSA’s actual brief here. Since I am not an attorney, I’ll try to explain our position in layman’s terms; but there may be some technical errors in translation.

We’ve written about Jon Corbett at TSA News many times. In brief, he’s been trying to sue the TSA for years on various grounds, including violation of the 4th Amendment protection against unwarranted search and seizure. Here’s a brief summary at his blog.

His case with the U.S. Court of Appeals for the Eleventh Circuit on the constitionality of TSA searches was dismissed on a technicality. However, the justices then ruled that TSA searches are constitutional (read some of the disturbing details at the link). In other words, the court simultaneously dismissed the case and ruled on it. So Corbett has filed an appeal with the Supreme Court.

FTTUSA’s amicus brief on behalf of Corbett’s appeal includes two questions (these are direct quotes from the brief):

1. Whether a facial challenge under the Fourth Amendment to an agency order allowing warrantless searches of the public is a justiciable Article III “case or controversy” despite the absence of any factual record of how intrusive the searches actually are;

2. Whether a court may simultaneously dismiss a constitutional claim under a non-jurisdictional, procedural rule and then decide the claim, as the 11th Circuit has held, or whether the rule of constitutional avoidance precludes such an outcome, as this Court and every other circuit has held.

A “facial challenge,” defined by Wikipedia: “In U.S. constitutional law, a facial challenge is a challenge to a statute in which the plaintiff alleges that the legislation is always unconstitutional, and therefore void.” So the first point above asks whether the 11th Circuit court had the authority to rule on Jon’s constitutional question without a full factual record.

“Justiciable” means “capable of being decided by legal principles or by a court of justice.” That point seems to have the best chance of carrying the day. There is a lot of precedent that states that a court can’t both dismiss a case on a technicality and then rule on the matter anyway.

Our lawyer maintains that the case was non-justiciable, in that is was “un-ripe.” What that means is that there was insufficient fact-gathering: the justices heard and/or read only the TSA’s submitted record. There was no factual record of how intrusive the TSA’s searches really are, from the standpoint of a traveler. There was no testimony at all. This point is reminiscent of the New York City stop-and-frisk lawsuit, where significant fact-gathering was ordered.

We have asked SCOTUS to vacate or reverse the Eleventh Circuit ruling. Stay tuned.

Freedom to Travel USA is an un-incorporated, non-partisan grassroots civic organization concerned with the dignity and privacy of travelers. It was founded by Renee Beeker, Jeff Pierce, and Wendy Thomson.