The U.S. Court of Appeals for the District of Columbia ruled Friday that the Transportation Security Administration goofed when it didn’t go through the usual rulemaking process before putting body scanners in the nation’s airports.
However, it said the problem was procedural, not constitutional.
“Although we are not persuaded by any of the statutory or constitutional arguments against the rule, we agree the TSA has not justified its failure to issue notice and solicit comments,” the opinion stated.
The Electronic Privacy Information Center and others challenged the order from the TSA’s parent, the U.S. Department of Homeland Security, that put the body scanners in airports.
Among other challenges, the center said the scanners violated the Fourth Admendment’s prohibit against unreasonable searches because such a scan “is more invasive than is necessary to detect weapons or explosives,” the opinion recounted.
The appeals court ordered the TSA and DHS to go through the usual rulemaking procedure, including posting the proposed rule and allowing a certain time to allow comments.
However, it let the TSA continue to use the scanners as the agency proceeds with the rulemaking.
“Because vacating the present rule would severely disrupt an essential security operation, however, and the rule is, as we explain below, otherwise lawful, we shall not vacate the rule, but we do nonetheless expect the agency to act promptly on remand to cure the defect in its promulgation.”
Keep reading for the decision.