The Post-TSA Airport: A Constitution Free Zone?

Abstract

The Transportation Security Administration (TSA) has come under increasing scrutiny since its creation in 2001. In the 112th Congress alone, TSA-related witnesses testified at thirty-eight congressional hearings and provided 425 briefings for members of Congress.2 As aptly summarized by Charlie Leocha, director of the Consumer Travel Alliance, “[t]o much of the flying public, the TSA is a boogeyman . . . . TSA has become the butt of countless jokes.”3 And by most accounts, Leocha is right. Criticisms of the TSA and airport security measures have been lobbed from almost every corner imaginable. The attacks have been full-throated, nonpartisan, and increasingly vitriolic. In fact, it has become commonplace to turn on the television or open the newspaper and see the TSA being lambasted in some way, shape, or form.

By exploring the Constitution in a post-TSA airport, this article explores what constitutional rights look like for the average American who travels by air. Part I of the article details airport security, exploring the origins of modern-day security measures, looking at the creation of the Transportation Security Administration, and outlining what security measures are currently in force at the airport. Part II of the article looks at the Fourth Amendment in the airport, asking how much one’s right to be free from unreasonable searches and seizures yields to national security. And Part III of the article looks at the First Amendment and how much leeway one has in protesting the airport security measures currently in place. Throughout the article, one overarching theme should become apparent: in the search for security in the air, constitutional rights in the airport have been effectively eviscerated.