While true that no one asked you to get on a highway, there are differences.
1) You didn't buy a ticket and enter into a legal contract to drive on that highway; not to mention that in most cases it is a public (Government owned) highway.
As are airports government or government agency owned, so what is your point? Also what exactly is the difference between a toll highway and a service for which you need to buy a ticket? I am afraid I am not seeing the distinction.
The main point is that until now there was a tacit agreement (and case law support for the fact)that the searches at airport security barriers were reasonable. Hence the searches are those that are allowed within the purview of 4th Amendment.
That 4th Amendment does not apply is just a patently false statement. The question about whether these new procedure searches are reasonable or not per 4th Amendment, is the key issue that needs to be decided by the courts. On this I agree with Ryan. This is what a couple of my constitutional scholar acquaintances tell me too. Of course they could be wrong too, no doubt - but again, it is not a cut and dried issue as you have been trying to make it out to be in all your messages.
People do get confused between the searches and seizures that CBP is permitted to carry out before someone is legally admitted to the US, and the sort of searches that can be carried out while within the US. Those two are entirely different things, is what I have been told by several constitutional scholars. Again I am not one and am just stating what I have been told. The TSA searches are of the second variety.
Indeed the TSA itself on its web site clearly states: "
Courts characterize the routine administrative search conducted at a security checkpoint as a warrantless search, subject to the reasonableness requirements of the Fourth Amendment. Such a warrantless search, also known as an administrative search, is valid under the Fourth Amendment if it is "no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, " confined in good faith to that purpose,". And to the extent that the searches are consistent with the 4th Amendment, one can choose not to fly if one does not like them. However, the question at hand at this moment is whether the new searches are consistent with 4th Amendment or not.
Of course such pesky things never stop government bureaucrats from figuring out ways around, hoping that no one is paying attention. Afterall in the W era, there was a period when the right of
Habeus Corpus (Section 9 Clause 2 of the US Constitution) was suspended by a Presidential order in 2001, but was substantially overturned by the Supreme Court in 2004. Then Congress passed a law removing right of
Habeus Corpus from Aliens detained in Guantanamo Bay, and even that was substantially overturned by the Supreme Court in 2006. Even then the matter was not fully resolved until President Obama by executive order restored the right to all at Guantanamo. Of course once the matter had been narrowed down to only those in Guantanamo most of the country lost interest in it.
Bottom line is, every such change should be challenged and run through the courts to establish validity. Just an Executive Order does not make something legal in and of itself, until it has been vetted through the courts.
2) You are in your own private vehicle that you purchased with your own money.
What about Buses? Trains on railroads? Assuming that it is only the privateness of your own car that you bought with your own money, or of a rental which by virtue of the lease agreement makes it private, it should be OK to pat down anyone and if refused to eject him/her from the highway, as long as they were not within their private car bought with their own money?
Shouldn't one being in ones private clothes count for something?
So then since someone is not in a private car as soon as s/he steps out of his/her car, it would be OK to catch a person outside his/her car and shove him/her through a airport style patdown for just being on a certain part of highway property? And in a related area then CBP doing TSA style patdowns on Amtrak or NJT trains should be fine too, even when it is within the US borders for those legally in the US. Indeed in the latter cases you *do* buy a ticket to enter into a legal contract to be transported.
Again, (i) I don't know the nuances of the law. But in my view your position is logically inconsistent, at least in a subset of the case even on the highway. (ii) The issue boils down to the reasonableness or lack thereof of the search given the circumstances leading to the search.
