I am most happy to see this comment from Garrett Epps, a Constitutional law professor at the University of Baltimore, in The Atlantic concerning the recent checking of papers of passengers deplaning from a domestic flight by ICE and Customs and Border Protection agents, as I’ve been quietly grinding my teeth ever since I heard about it:
After days of research, I can find no legal authority for ICE or CBP to require passengers to show identification on an entirely domestic fight. The ICE authorizing statute, 8 U.S.C. § 1357, provides that agents can conduct warrantless searches of “any person seeking admission to the United States”—if, that is, the officer has “reasonable cause to suspect” that the individual searched may be deportable. CBP’s statute, 19 U.S.C. § 1467, grants search authority “whenever a vessel from a foreign port or place or from a port or place in any Territory or possession of the United States arrives at a port or place in the United States.” CBP regulations, set out at 19 C.F.R. § 162.6, allow agents to search “persons, baggage, and merchandise arriving in the Customs territory of the United States from places outside thereof.”
I asked two experts whether I had missed some general exception to the Fourth Amendment for passengers on a domestic flight. After all, passengers on flights entering the U.S. from other countries can expect to be asked for ID, and even searched. Barry Friedman, the Jacob D. Fuchsberg professor of law and affiliated professor of politics at New York University, is the author of Unwarranted: Policing Without Permission, a new book-length study of intrusive police investigation and search practices. “Is this remotely constitutional?” he asked. “I think it isn’t. We all know generally the government can’t come up and demand to see identification.” Officers need to have statutory authority to search and reasonable suspicion that the person to be searched has violated the law, he said. Andre Segura, senior staff attorney at the American Civil Liberties Union’s Immigrants’ Rights Project, told me that “I’m not aware of any aviation exception” for domestic passengers.
Definitely an authoritarian’s way. After some talk about consensual conduct, he moves on to his own conclusions:
I am vowing here and now not to show papers in this situation. I know that it will take gumption to follow through if the situation arises. What will be the reaction of ordinary travelers, some with outstanding warrants or other legal worries? Should we expect heroism of people who just want to get off an airplane?
Justice William O. Douglas once wrote that a regime of liberty includes “freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.”
A shadow is falling over that freedom, both for aliens and for citizens. Its loss will be devastating.
The shadow will exist only so long as citizens let it. Remembering that law enforcement personnel are also citizens, not an enemy, but may need to be gently reminded to remain within Constitutional limits despite hectoring from political appointees. Calmly insisting what is wrong is wrong is the best path.
