TSA has legal authority to conduct air passenger temperature screenings

Introduction
National emergency authority
Authority to conduct measures relating to transportation security


Introduction

As airlines seek to restore consumer confidence in air travel, they are urging the Transportation Security Administration (TSA) to administer temperature screenings of all passengers at TSA airport security checkpoints. Several airlines, including Frontier Airlines and Air Canada, as well as airports in Washington State and Hawaii have announced plans to conduct screenings. Such action by individual airlines and airports, while laudable in its intent, may result in an inconsistent approach that confuses passengers, thereby potentially undermining the confidence of the travelling public. The protection of public health is a purely governmental function that, in the context of air travel, requires action by the federal government.

Some have questioned whether the TSA has statutory authority to do so. For its part, the TSA appears to have answered that question in the affirmative because it is reportedly preparing to administer temperature checks at more than a dozen US airports. The TSA's apparent legal conclusion is correct.

The Aviation and Transportation Security Act (Section 114 of Title 49 of the United States Code) affords the TSA broad, overarching authority over transportation security, but two of the act's specific provisions are relevant to the TSA's plan to conduct passenger temperature checks: Section 114(g)(1) grants the TSA authority to act in response to a "national emergency" and Sections 114(f)(4) and 114(f)(16) afford the TSA discretion to carry out unspecified measures "related to transportation security".

National emergency authority

The TSA's strongest legal basis for conducting temperature screenings may be found in Section 114(g)(1) of Title 49 of the United States Code, which governs the TSA's responsibilities "during a national emergency.", which include:

coordinat[ing] domestic transportation, including aviation… [and] carry[ing] out such other duties, and exercise such other powers, relating to transportation during a national emergency as the Secretary of [the Department of] Homeland Security [DHS] shall prescribe.

The act does not define 'national emergency', but rather authorises the secretary of the DHS to "prescribe the circumstances constituting a national emergency" and direct the TSA's responsibilities in response to such an emergency (Sections 114(g)(1) and 114(g)(3)).

As President Donald Trump declared a national emergency on 13 March 2020, the secretary of the DHS could assert that a national emergency exists and prescribe duties to the TSA in response, including passenger temperature screenings.

Specifically, the TSA could argue that temperature screenings "relate to transportation during a national emergency", pursuant to direction from the secretary of the DHS, because they are an essential part of enabling the public to travel safely by air in the midst of a global pandemic. Alternatively, the TSA could assert that temperature checks are necessary to "coordinate domestic [aviation] transportation". While 'coordinate' is not defined in the statute, the TSA could argue that to enable domestic aviation to return to pre-COVID-19 levels, the public must be confident that there are common, standardised measures in place to mitigate COVID-19-related health risks in air transport that do not depend on the particular airline used by a passenger or the airport from which they depart. It can and should be the federal government's role to conduct such checks on a standardised, consistent basis and the TSA's statutory authority likely allows it to do so pursuant to direction from the DHS.

Authority to conduct measures relating to transportation security

The TSA arguably has authority to conduct passenger temperature checks pursuant to two provisions in Section 114(f) of Title 49 of the United States Code. Under Section 114(f)(4), the TSA must "make other plans related to transportation security, including coordinating countermeasures with appropriate departments, agencies, and instrumentalities of the United States Government".

Similarly, under Section 114(f)(16), the TSA is responsible for "carry[ing] out such other duties, and exercise such other powers, relating to transportation security as the Administrator considers appropriate, to the extent authorized by law".

Both provisions broadly authorise TSA actions in furtherance of transportation security. However, the TSA's statutory authority does not define the term 'security'. The TSA could assert that:

• Congress intended the term 'security' to be broad by leaving it undefined; and
• the term:
  • encompasses more than what is traditionally thought of as security; and
  • involves efforts to ensure that passengers are free from threats or danger of any kind during transportation.

Because COVID-19 poses a threat to passenger health in air transportation, temperature screenings are therefore necessary to secure air travel and potentially mitigate that danger.

For further information on this topic please contact Rachel Welford at Cozen O'Connor by telephone (+1 202 912 4800) or email (rwelford@cozen.com). The Cozen O'Connor website can be accessed at www.cozen.com.