Archive for July, 2006

Working Draft of Cert Petition

Wednesday, July 12th, 2006

Attached are our first four working drafts of the Petition for Certiorari. As you’ll see, the Petition is much closer to complete now than in the early drafts. Drafts 3 and 4 are substantially the same, except that they are organized differently, and we are evaluating to decide which we prefer. Review the draft and post your comments.

Gilmore Cert Petition — Draft 1
Gilmore Cert Petition — Draft 2
Gilmore Cert Petition — Draft 3
Gilmore Cert Petition — Draft 4

Legislative history of 49 U.S.C. Section 114(s)

Tuesday, July 11th, 2006

Title 49, section 114(s) provides:

(s)  Nondisclosure of security activities.

(1)  In general.  Notwithstanding section 552 of title 5, the Under Secretary shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security under authority of the Aviation and Transportation Security Act (Public Law 107-71) or under chapter 449 of this title if the Under Secretary decides that disclosing the information would—

(A) be an unwarranted invasion of personal privacy;

(B) reveal a trade secret or privileged or confidential commercial or financial information; or

(C) be detrimental to the security of transportation.

49 U.S.C. § 114(s).

Section 114(s) was amended to Title 49 of the United States Code in 2002 following legislative approval of House of Representatives Bill No. 5005 (“H.R. 5005”) which enacted the Homeland Security Act of 2002, Public Law 107-296.  The bill was enacted in response to 9/11 and brought about a major reorganization of several federal agencies under the Department of Homeland Security.  (more…)

Legislative history of 49 U.S.C. §§ 40119, 44902

Friday, July 7th, 2006

The provisions that are 49 U.S.C. Sections 40119(b) and 44902(b) were enacted in 1974 as part of the Air Transportation Security Act of 1974 [1] in response to a string of hijackings in the early 1970s. Public Law 93-366, enacted by Senate Bill No. 39 (“S. 39”), was entitled:

An act to amend the Federal Aviation Act of 1958 to implement the Convention for the Suppression of Unlawful Seizure of Aircraft; to provide a more effective program to prevent aircraft piracy; and other purposes.

The Act is divided into two Titles: Title I, the “Antihijacking Act of 1974,” and Title II, the “Air Transportation Act of 1974.” Our language of interest is part of Title II, which dealt with “prevention, deterrence and punishment for criminal offenses against the air transportation system.” (more…)

Is the void for vagueness doctrine apposite, where the public cannot see a law or regulation? Are there cases applying this principle to secret law?

Thursday, July 6th, 2006

Perhaps because the notion of a “secret” or unpublished law or regulation is extremely rare, we did not find any cases applying the void-for-vagueness doctrine to “secret law.” There are a few cases that address the application of the doctrine to “unwritten” regulations and policies, with different results. (more…)

Potential “Secret Law” Issues

Wednesday, July 5th, 2006

This case raises important questions about whether a government agency can enact what one might term a “secret law”: a binding final order that directly affects the public but that the public nevertheless cannot view. Did Congress actually provide the TSA with authority to completely exempt Security Directives from public view? Is there a due process problem with Congress granting an executive agency the authority to issue binding secret orders that directly affect American travelers? Is there a First Amendment or due process problem with passengers being unable to enforce their rights via litigation because they can’t establish what those rights are? (more…)