So there's been a lot of talk in the news about the new TSA rules regarding full body scanners and pat downs in airports. I've been thinking a lot about this and was having trouble with it because it clearly seems wrong to me, but it is a legitimate power of Congress to regulate interstate commerce and air travel definitely falls under that realm. So, if it is obviously wrong, but Congress can regulate interstate commerce, where's the problem?
First of all, the scanners themselves emit low level radiation that should not be harmful in small doses unless you have an artificial hip, bone, whatever or have a pace maker. People with these have no options, they can't use the scanners, so they must submit to the pat downs. That removes the right to choose between two bad options and forces a good number of people onto a single path without choice. Additionally, one medical report has stated that frequent exposure to these machines could greatly increase a person's risk of skin cancer. I haven't heard anything about other health risks, but I always thought there was a reason they covered certain areas when doing an x-ray in the hospital.
Secondly, these scanners are extremely revealing. I've seen images and heard them likened to pornography. In fact, the U.K. has banned the use of these scanners for children under the age of 18 because they stated it was like child pornography. This does not make me feel good and secure as a parent, but quite the opposite in fact. In addition, it has been reported in the news that these body scanners won't even pick up explosive residue like the puffer machines do and they won't pick up anything a person places "inside" their bodies. So really, what is the point of this machine if it can't even do the job they claim it was designed to do?
At any rate, the scanners are one thing, but these new pat down procedures are awful. So, a person is subjected, publicly, to being groped and fondled. If this took place anywhere else other than in an airport security line, the person would be arrested. So, because the government is doing it, it is ok? No, it still isn't okay. The government doing it actually makes it worse. However, how can I make my case when the government's right to regulate interstate commerce is clearly in play.
Well, the government also has constitutional limitations that come in to play in this case. First, the 4th amendment states: "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." Now, these pat downs certainly seem to be unreasonable, at least by the standards of most people, however, one could argue that the government needs to do this to keep us safe. I might buy in to that argument if 1. I thought it was really necessary (I don't) and 2. Congress had actually passed a law requiring this kind of security screening (they haven't). In fact, this screening comes from a regulation put in place by order of the Head of the Department of Homeland Security, Janet Napolitano. There was no act of Congress, just an order from an agency's head. Therefore, I believe it is an unreasonable search. However, this brings us to the second constitutional point.
The 14th amendment states in part: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." We've already established that for people with certain medical devices or implants that they don't have a choice here, so they are being denied equal protection. However, I want to focus on due process. As I pointed out above, Congress has passed no law. This was a decision of the Head of Homeland Security. Since no law has been passed, every single person who has been and is being subjected to this invasive procedure is being denied their right to due process. Basically, the TSA is treating every single person with the assumption that they are a criminal or a terrorist, rather than assuming they are innocent. Again, you can argue that Congress gave TSA the authority to run security in airports and you'd be right, but Congress can't give power to an agency to violate the Constitution, at least not without specifically passing legislation providing them with that power. I don't think that our representatives would agree with TSA that this invasive technology and pat down technique is consistent with the legislation authorizing TSA. In fact, the House of Representatives has already passed a bill that prohibits the use of these full body scanners as a primary security device. That pretty shows the will of Congress, even if the Senate hasn't taken up the bill.
So, for me, this is clearly unconstitutional, not because Congress should be prohibited its right to regulate interstate commerce, but because Congress and the TSA are subject to the Constitution like the rest of us. Here, the right to due process, the right to equal protection, and the right from unreasonable search and seizure are all being violated.
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