What Is the Limit of TSA Statutory Authority?

The pat downs of traveling U.S. citizens at the nations' airports have attracted a lot of attention by civil rights advocates. It appears the authority for the TSA to engage in intrusive searches is not limited to the nation's airports. Under the Aviation and Transport Security Act of 2001, Congress gave TSA authority to conduct its body searches at bus terminals. The video below shows that the federal government does not seem to perceive any limitation on its rights to invade privacy of the traveling public.

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Nigel Farage's Liberty Speech Against the European Union

Nigel Farage is the leader of the United Kingdom Independence Party. He is also a member of the European Parliament for "South East England."

Notice how the European Parliament breaks national boundaries into regions, marginalizing the national identity of the members of the European Union. This foments the possibility of conflict within regions of a nation, and potentially weakens the strength of each State.

Apparently, the EU Parliament has just voted to advise Ireland, which is seeking a bailout from the EU, that it would be inappropriate to hold democratic elections before voting on a budget as the Irish government collapses. That would deprive the Irish people of the power to elect better representatives, and would allow the old guard who drove Ireland to bankruptcy to set the budgetary priorities. Obviously, many Irishmen and Irishwomen might be a bit unhappy with that prospect. But, that does not stop the EU from its obnoxious advice to Ireland.

The advice sparks Farage to ask, "Just who do you people think you are?" He calls them dangerous.  The video of Farage's freedom speech is going to go viral in Europe and America. The globalists cannot keep freedom from bubbling out of control.

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US Wealth -- Top 1 Percent Controls Nearly Half of Financial Assets

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Approaching Opt Out Day With Caution

Wednesday is Opt Out Day. The idea is to decline to undergo ionizing radiation in the full body scanners and force TSA to conduct the pat down search. The theory is that opt outs will force people to confront the intrusiveness of the TSA process and spur Congress to take action, perhaps a retreat to a level of reasonableness demanded by common sense.

There is a lot of stuff on the Internet about why the TSA's process is tyrannical and unconstitutional. That stuff emboldens folks, who may take it upon themselves to challenge the system. However, challenging the system could be very expensive, and you should not do it unless you are prepared to eat a civil fine of up to $10,000. Even refusing the screening process and attempting to leave the airport can create the possibility of a civil fine.

“Once a person submits to the screening process, they can not just decide to leave that process,” Sari Koshetz, a Miami regional TSA spokesperson, told the Sun Sentinel. Koshetz said these passengers would be questioned “until it is determined that they don’t pose a threat” to the public.

John Lantigua, $11,000 fine, arrest possible for some who refuse airport scans and pat downs, Palm Beach Post (Nov. 20, 2010).

The TSA has recently issued a TSA Enforcement Guidance Sanctions Policy (Oct. 12, 2010). In the section 3 on enforcement guidance against “individuals,” The TSA Guidance lists the possible sanctions for, “Other Security Violations by Individuals or Persons.” This section, has been interpreted by TSA leaders to authorize sanctions against people who resist the government's invasive search before people enter flight waiting areas at airports.

Interference with screening

Action: Fine:

i. Including physical contact $1,500-$5,000

ii. Non-physical interference $500-$1,500

iii. False threats $1,000-$2,000

Entering sterile area without
submitting to screening $1,000-$3,000

Entering or being present within a secured area,
AOA, SIDA, or sterile area without complying
with the systems, measures, or procedures being
applied to control access to, or presence or
movement in, such areas $500-$3,000

Violations not listed above are subject to the
regulatory civil penalty maximum of $11,000

According to TSA, “The current civil penalty monetary amounts became effective on August 20, 2009.”

The legal authority for TSA's civil enforcement power is derived from regulations issued by the Department of Homeland Security and laws enacted by Congress. First, the regulations:

No individual may enter a sterile area or board an aircraft without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area or aircraft under this subchapter.

49 C.F.R. § 1540.107.

No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter.

49 C.F.R. § 1540.109..

The active regulation permitting imposition of fines states as follows:

Any person who violates any provision of 49 U.S.C. Chapter 449 . . . or a regulation prescribed or order issued under any of those provisions is subject to a civil penalty of not more than the amount specified in the chapter or section for each violation in accordance with 49 U.S.C. 46301, in conformity with the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 (note), as amended.

49 C.F.R. § 1503.16..

The power of the regulations emanate from law enacted by our wonderful Congress. Chapter 449 allows TSA to undertake ”Screening Passengers and Property”.

The specific statute our elected leaders created and which authorizing this civil enforcement is 49 U.S.C. § 46301(a)(4) (authorizing a maximum civil penalty of up to $10,000).

The statute our Congress imposed on America seems to grant the Secretary of Homeland Security absolute discretion in determining whether to issue a civil penalty, and setting the amount of the fine for passengers who allegedly violate screening methods and systems. “In a civil action to collect a civil penalty imposed by the Secretary of Homeland Security or Administrator under this subsection, the issues of liability and the amount of the penalty may not be reexamined.” 49 U.S.C. § 46301(d)(3).

Think you can find relief by taking the law to court and challenging its constitutionality? Think again. Federal court judges, according to the law, are prohibited from reviewing the civil penalty decisions by the Department of Homeland Security. “An order of the Secretary or the Administrator imposing a civil penalty may be reviewed judicially only under section 46110 of this title.” 49 U.S.C. § 46301(g).

You do have a facially valid method of seeking due process. But, that process is within the Department of Homeland Security. Thus, a person subjected to the penalty must exhaust her appeal remedies within the procedural system set up by the Department of Homeland Security before filing a case in federal court. That procedural process grants a person the right to a hearing, and an appeal. However, the Administrative Law Judges who will decide whether to uphold the civil fine are not going to consider the unconstitutionality of the regulation or statute. They will merely interpret the law as enacted by Congress and The Department of Homeland Security. As quoted above, the law is very broad and it will likely be quite easy for TSA agents to bring cases for civil penalties against Americans who resist the tyranny.

As the “opt out” day approaches, Americans need to be aware of the consequences of active resistance to this federal tyranny. The federal government has granted the TSA broad powers to hammer passengers who try to resist their authority. In fact, you can expect that TSA, which knows about "opt out day," is planning to vigorously enforce the rules against the liberty-minded citizens.

If you are a person who gets cross-ways with TSA, it would be very wise to have your recordings and video equipment operating. That will preserve evidence for the administrative hearing (or press), which could be introduced as evidence to contradict false testimony by TSA agents.

On Opt Out Day you also should not actively resist a TSA employee without giving the matter a lot of thought, or you could be charged with physically resisting the screening. As noted above, TSA interprets their power so broadly that even leaving the screening area, could result in an alleged violation of the “other” category. However, such a fine, as was threatened against John Tyner, seems very much a stretch.

If you are fined, make sure you carefully meet the very short deadlines and file all appeals needed to get a hearing before an ALJ. My experience as an attorney who occasionally encounters the government administrative agency appeal processes is that the government will compromise once you exercise your procedural rights, particularly if publicity for the agency is adverse or if there is a threat you will file a case in federal court to challenge constitutionality of the regulation or enabling statute.

I would definitely assert that the civil fines violate the sixth and seventh amendments to the Constitution, which give citizens the right to trial by jury. You should also insist that the government bears the burden of proof beyond a reasonable doubt.

You should, however, be prepared to lose your case because you probably are going to lose at the agency level, and probably in federal court as well. This system is stacked against liberty because apparently the government's statutory scheme gives you no right to a trial jury.

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2009 State GDP Graph: It's Not Good

The U.S. Commerce Department's Bureau of Economic Analysis issued an interesting press release the comparing the States 2009 gross domestic production. South Carolina declined by 2.5 percent. Here is the chart:

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Ill-Advised Push to Ramrod New Start Through Lame Duck Senate

The Obama Administration is pushing hard to ram through ratification of the New Start Treaty it negotiated with Russia. The problem with ratification is that there is a sharp disagreement between the parties to the treaty (the U.S. and Russia) about whether the United States agreed to give up its missile defense capability.

Here is what the Russians said after the Treaty negotiations concluded:

The Treaty between the Russian Federation and the United States of America on the Reduction and Limitation of Strategic Offensive Arms signed in Prague on April 8, 2010, can operate and be viable only if the United States of America refrains from developing its missile defence capabilities quantitatively or qualitatively.


Consequently, the exceptional circumstances referred to in Article 14 of the Treaty include increasing the capabilities of the United States of America's missile defence system in such a way that threatens the potential of the strategic nuclear forces of the Russian Federation.

Statement by the Russian Federation on Missile Defence (April 8, 2010).

The Obama negotiators dispute the Russian interpretation. Consequently, the Senate Republicans on the Senate Foreign Relations Committee requested the Administration release the "negotiating record." Such requests are not unheard of as I blogged about in my June 19, 2010, post, New Start Clouded By Lack of Transparency. The Administration refused to give up the negotiating record, possibly because it would reveal the Hillary Clinton negotiating team were bumbling fools. The political consequences of negotiating away the U.S. missile defense strategy, while appealing to some Democrats, would be a colossal blunder especially in this day and age of rogue States developing long range missile capability and nuclear weaponry.

Now, the Administration calls ratification a matter of the first priority of national security. If that is true, why won't the Administration release the negotiating record? It continues to hide the record from the Senate, which is an awfully strange action considering how allegedly important the ratification is for the Administration.

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DREAM Act Facts

Michelle Malkin has a blog post, DREAM Act scorecard (Nov. 18, 2010), about the lame duck Senate's attempt to ram through "DREAM Act" legislation. This proposed law would open the pathway for illegal aliens now present in the United States to apply for and obtain the status of "Lawful Permanent Residence." Such status would grant the recipients amnesty for sneaking across the borders without inspection. It would also allow the people who bypassed our immigration process to skip ahead of law abiding aliens in foreign countries who have patiently waited for years to immigrate here as required by law.

The proposed amnesty bill would likely facilitate millions of new voters. Non-English speaking voters in Nevada were the force that allowed Democrat Senate Majority Leader Harry Reid to defeat Sharon Angle in a narrow election. The Democrats see amnesty as a means to increase the voter roles with largely Democrat voters and thereby tilt the balance of power toward the socialistic and progressive side.

Click on to read a Memorandum from Alabama Senator Jeff Sessions, as quoted by Malkin on her blog. Ten Things You Need To Know About S.3827, The DREAM Act

1. The DREAM Act Is NOT Limited to Children, And It Will Be Funded On the Backs Of Hard Working, Law-Abiding Americans

Proponents of the DREAM Act frequently claim the bill offers relief only to illegal alien “kids.” Incredibly, previous versions of the DREAM Act had no age limit at all, so illegal aliens of any age who satisfied the Act’s requirements—not just children—could obtain lawful permanent resident (LPR) status. In response to this criticism, S.3827 includes a requirement that aliens be under the age of 35 on the date of enactment to be eligible for LPR status. Even with this cap, many aliens would be at least 41 years old before obtaining full LPR status under the Act—hardly the “kids” the Act’s advocates keep talking about.

The DREAM Act requires that DHS/USCIS process all DREAM Act applications (applications that would require complex, multi-step adjudication) without being able to increase fees to handle processing. This mandate would require either additional Congressional appropriations, or for USCIS, a primarily fee-funded agency, to raise fees on other types of immigration benefit applications. This would unfairly spread the cost of administering the DREAM Act legalization program among applicants and petitioners who have abided by U.S. laws and force taxpayers to pay for amnesty. Taxpayers would also be on the hook for all Federal benefits the DREAM Act seeks to offer illegal aliens, including student loans and grants.

2. The DREAM Act PROVIDES SAFE HARBOR FOR ANY ALIEN, Including Criminals, From Being Removed or Deported If They Simply Submit An Application

Although DREAM Act proponents claim it will benefit only those who meet certain age, presence, and educational requirements, amazingly the Act protects ANY alien who simply submits an application for status no matter how frivolous. The bill forbids the Secretary of Homeland Security from removing “any alien who has a pending application for conditional status” under the DREAM Act—regardless of age or criminal record—providing a safe harbor for all illegal aliens. This loophole will open the floodgates for applications that could stay pending for many years or be litigated as a delay tactic to prevent the illegal aliens’ removal from the United States. The provision will further erode any chances of ending the rampant illegality and fraud in the existing system.

3. Certain Criminal Aliens Will Be Eligible For Amnesty Under The DREAM Act

Certain categories of criminal aliens will be eligible for the DREAM Act amnesty, including alien gang members and aliens with misdemeanor convictions, even DUIs. The DREAM Act allows illegal aliens guilty of the following offenses to be eligible for amnesty: alien absconders (aliens who failed to attend their removal proceedings), aliens who have engaged in voter fraud or unlawfully voted, aliens who have falsely claimed U.S. citizenship, aliens who have abused their student visas, and aliens who have committed marriage fraud. Additionally, illegal aliens who pose a public health risk, aliens who have been permanently barred from obtaining U.S. citizenship, and aliens who are likely to become a public charge are also eligible.

4. Estimates Suggest That At Least 2.1 Million Illegal Aliens Will Be Eligible For the DREAM Act Amnesty. In Reality, We Have No Idea How Many Illegal Aliens Will Apply

Section 4(d) of the DREAM Act waives all numerical limitations on green cards, and prohibits any numerical limitation on the number of aliens eligible for amnesty under its provisions. The Migration Policy Institute estimates that the DREAM Act will make approximately 2.1 million illegal aliens eligible for amnesty. It is highly likely that the number of illegal aliens receiving amnesty under the DREAM Act will be much higher than the estimated 2.1 million due to fraud and our inherent inability to accurately estimate the illegal alien population. Clearly, the message sent by the DREAM Act will be that if any young person can enter the country illegally, within 5 years, they will be placed on a path to citizenship.

5. Illegal Aliens Will Get In-State Tuition Benefits

The DREAM Act will allow illegal aliens to qualify for in-state tuition, even when it is not being offered to U.S. citizens and legally present aliens living just across state lines. Section 3 of the DREAM Act repeals Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1623) which prohibits giving education benefits to an unlawfully present individual unless that same benefit is offered to all U.S. citizens.

6. The DREAM Act Does Not Require That An Illegal Alien Finish Any Type of Degree (Vocational, Two-Year, or Bachelor’s Degree) As A Condition of Amnesty

DREAM Act supporters would have you believe that the bill is intended to benefit illegal immigrants who have graduated from high school and are on their way to earning college degrees. However, the bill is careful to ensure that illegal alien high school drop-outs will also be put on a pathway to citizenship – they simply have to get a GED and be admitted to “an institution of higher education,” defined by the Higher Education Act of 1965.
Under the Higher Education Act, an “institution of higher education” includes institutions that provide 2-year programs (community colleges) and any “school that provides not less than a 1-year program of training to prepare students for gainful employment” (a vocational school). Within 8 years of the initial grant of status, the alien must prove only that they finished 2 years of a bachelor’s degree program, not that they completed any program or earned any degree.
If the alien is unable to complete 2 years of college but can demonstrate that their removal would result in hardship to themselves or their U.S. citizen or LPR spouse, child, or parent, the education requirement can be waived altogether.

7. The DREAM Act does not require that an illegal alien serve in the military as a condition for amnesty, and There is ALREADY A Legal Process In Place For Illegal Aliens to Obtain U.S. Citizenship Through Military Service

DREAM Act supporters would have you believe that illegal aliens who don’t go to college will earn their citizenship through service in the U.S. Armed Forces. However, the bill does not require aliens to join the U.S. Armed Forces (the Army, Navy, Air Force, Marine Corps, or Coast Guard); instead it requires enlistment in the “uniformed services.” This means that aliens need only go to work for the National Oceanic and Atmospheric Administration or Public Health Service for 2 years to get U.S. citizenship. If the alien is unable to complete 2 years in the “uniformed services,” and can demonstrate that their removal would result in hardship to themselves or their U.S. citizen or LPR spouse, child, or parent, the military service requirement can be waived altogether. Such claims will likely engender much litigation and place a huge burden on DHS.

Furthermore, under current law (10 USC § 504), the Secretary of Defense can authorize the enlistment of illegal aliens. Once enlisted in the U.S. Armed Forces, under 8 USC § 1440, these illegal aliens can become naturalized citizens through expedited processing, often obtaining U.S. citizenship in six months.

8. Despite Their Current Illegal Status, DREAM Act Aliens Will Be Given All The Rights That Legal Immigrants Receive—Including The Legal Right To Sponsor Their Parents and Extended Family Members For Immigration

Under current federal law, U.S. citizens have the right to immigrate their “immediate relatives” to the U.S. without regard to numerical caps. Similarly, lawful permanent residents can immigrate their spouses and children to the U.S. as long as they retain their status. This means illegal aliens who receive amnesty under the DREAM Act will have the right to immigrate their family members—including the parents who sent for or brought them to the U.S. illegally in the first place—in unlimited numbers as soon as they become U.S. citizens (6 to 8 years after enactment) and are 21 years of age.

Additionally, amnestied aliens who become U.S. citizens will be able to petition for their adult siblings living abroad to immigrate to the U.S., further incentivizing chain migration and potentially illegal entry into the United States (for those who don’t want to wait for the petition process overseas). When an adult brother or sister receives a green card, the family (spouse and children) of the adult sibling receive green cards as well.

9. Current Illegal Aliens Will Get Federal Student Loans, Federal Work Study Programs, and Other Forms of Federal Financial Aid

Section 10 of the DREAM Act allows illegal aliens amnestied under the bill’s provisions to qualify for federal student assistance under Title IV of the Higher Education Act of 1965 (20 U.S.C. 1001 et seq.) in the form of federal student loans (Stafford Loans, Perkins Loans, Federal Direct Stafford/Ford Loans), federal work-study programs, and other federal education services such as tutoring and counseling.
10. DHS Is Prohibited From Using the Information Provided By Illegal Aliens Whose DREAM Act Amnesty Applications Are Denied To Initiate Their Removal Proceedings or Investigate or Prosecute Fraud in the Application Process

When an illegal alien’s DREAM Act amnesty application is denied, the bill states that the alien will revert to their “previous immigration status,” which is likely illegal or deportable. The bill, however, prohibits using any of the information contained in the amnesty application (name, address, length of illegal presence that the alien admits to, etc) to initiate a removal proceeding or investigate or prosecute fraud in the application process. Thus, it will be extremely hard for DHS to remove aliens who they now know are illegally present in the U.S., because illegal aliens will be able to claim that the legal action is a product of the amnesty application, and DHS will have the nearly impossible task of proving a negative.

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The American Traveler Dignity Act

Representative Ron Paul introduced HR 6416 called the American Traveler Dignity Act. The one paragraph law removes the government immunity from citizen suits. Thus, if a TSA goon gropes your underwear, he could be charged with assault. If TSA machines create nude images of kids, they could be charged with child porn. When you receive an unhealthy dose of cancer causing ionizing radiation, the government will pay for the damages.

More importantly, we end the TSA. The organization's arrogance has become a symbol of the police state.

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More Totalitarianism Headed Our Way

Senate Bill 510 may come to the Senate floor for a vote during the lame duck session of Congress.  This Bill grants the Obama Food and Drug Administration (FDA) vast discretion to protect "health" by expanding FDA power over food production.  The beneficiaries of this legislation, which will entail complicated red tape, will like all regulatory systems benefit large organizations.  The larger organizations have the resources to comply with extensive regulations, and lobbying power to seek exemptions and waivers.  Small farmers and farmers markets cannot compete on those scales and will take the heat if this law is passed.

Rhetoric suggests that the Senate is aware of the problem and will have language added to create the impression they are not targeting the small farmer.  In reality, the Bill allows discretion to federal regulators at the FDA to prosecute whomever they choose.

The federal government does not need to be expanding its reach.  The last election showed leaders the American people reject this type of government nannyism.  Contact your senators and tell them to vote against government totalitarianism in the form of S.510.

ADDENDUM: This is from the Campaign for Liberty site:

"Section 401 of S. 510 authorizes nearly $1 billion to grow the government’s reach and calls for over 17,000 new bureaucrats to be hired through fiscal year 2014 (just for starters).

The bill also grants blanket authority for federal agencies to impose international guidelines and standards on domestic food producers - giving agencies authority to harmonize all American food production and processes in line with the globalist Codex.

Well-intentioned amendments to this rotten bill are not enough to make it anything other than unconstitutional.

It should be noted that Senators Tom Harkin (D-IA), Mike Enzi (R-WY), Dick Durbin (D-IL), Judd Gregg (R-NH), Chris Dodd (D-CT), and Richard Burr (R-NC) coordinated to reach a "bipartisan" agreement earlier in the year to forge ahead with the otherwise stalled bill.

If you are a constituent of any of these senators, they especially need to hear from you.

Don't let the statists empower their Big Agriculture allies and destroy reputable food producers like the independent family farm, where the free market works every day to provide the public with healthy choices."

Farmageddon Trailer from Kristin Canty on Vimeo.

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Gamecocks Win the East!

Big-time players, make big-time plays, in big-time games.

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The Message of Liberty

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Gamecocks Face Daunting Task

The Gamecocks go on the road this week to play the Florida Gators for the SEC East football Championship. Winning the championship constitutes a major challenge. The Gators are on a roll having won their last two games, including a 55-14 blowout of Vanderbilt.

The Gator home field advantage is significant as shown by the chart to the above left. On top of that, the Gators offense likely will see the return of leading rusher, Jeff Demps.


Demps leads the Gator offense in rushing with over 400 yards on the season. Another threat to run is Chris Rainey, who was suspended earlier in the season for sending threatening text messages to a girlfriend. Rainey led the team in attempted rushes against Georgia two games ago, a Gator win.

The Gators also like to use true freshman Trey Burton in their attack. Burton scored six touchdowns in the Gators 48-14 home win over Kentucky, a team that beat the Gamecocks in Kentucky.

While beating the Gators at the Swamp represents a challenge, it may not be impossible. The Gators are playing a large number of true freshmen this year. Their offensive line is salty, but there will be freshmen players sprinkled throughout their lineup at any given time. Hopefully, the Gamecocks can take advantage of the experience advantage and pull out a miraculous victory on Florida's home field.

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Fulda Gap 2010 Paintball Scenario Game

Nathan and I went up and played paintball this weekend. I made a video.

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Ron Paul to Head House Subcommittee on Domestic Monetary Policy

As Chairman, Representative Paul's Committee will have the authority to subpoena persons and records of the Federal Reserve.

The day after the historic election on November 2, 2010, the Fed announced it would buy a Trillion Six Hundred Billion Dollars of U.S. Treasury Bonds. The purchasing of government debt by printing more money loosens the constraints on federal government spending power. The technical term used is "monetize the debt" meaning that the Federal Reserve prints money to pay off the government debt.

The clip below summarizes some of the mischief the Fed action involves, primarily inflationary pressure. Inflation is the biggest hidden tax on the American public.

Ron Paul and his son, Rand Paul, just elected Senator in Kentucky, will jointly offer Audit the Fed bills in both houses of Congress.

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Liberty!

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