Potential “Secret Law” Issues

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?

The relevant circumstances are as follows: The Transportation Safety Administration, apparently on a fairly regular basis, issues Security Directives to workers in the transportation industry. These Directives apparently contain, among other things, security procedures that such workers are required to implement and enforce against members of the public. But the TSA has promulgated regulations that allow it to shield its Security Directives entirely from the public eye.

This regulatory scheme gave rise to the troubling facts of this case. Mr. Gilmore was subjected to the enforcement of a procedure purportedly contained in a Security Directive. He was prohibited from using his ticket to fly to Washington DC unless he submitted to showing identification or else undergoing an intrusive personal search. He requested to see the government order that required this procedure, but, pursuant to TSA regulations, he was unable to see even the limited subsection of the Security Directive setting forth the identification procedure with which he was being forced to comply.

This scenario presents many interesting legal issues, including the following:

  • Did Congress actually provide the TSA with authority to completely exempt Security Directives from public view? The relevant statutory section provides that the TSA “shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security . . . if the Under Secretary decides that disclosing the information would– . . . be detrimental to the security of transportation.” Does the statute in fact allow the TSA to prevent Mr. Gilmore from seeing the text of an agency provision that is at that very moment being enforced against him? Must he simply accept the ipse dixit of the airline personnel as to the existence of the order and what it requires? How does such an understanding of the statute comport with preexisting notions of due process and statutory law relating to agency action (e.g., the Administrative Procedure Act)?
  • Is there a due process problem with Congress granting an executive agency the authority to issue binding secret orders that directly affect American travelers? Does this violate the due process “notice” requirement? Is it void for vagueness, since it’s impossible for any of the affected passengers to prepare themselves to comply with a regulation they can’t see? Is there some substantive due process right at issue?
  • 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? If, for example, an airline employee were to lie as to the terms of the regulation, how would a passenger find out? Does it unconstitutionally hamstring potential plaintiffs that if they sue a defendant purportedly acting pursuant to the policy, the defendant can see the policy — and make arguments to the court concerning it — but the plaintiff cannot? Does a public interest in sound judicial administration require the agency to make available those portions of its Directives that are generally applicable to all airline passengers?

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