Department of Homeland Security's 9/11 Security Fee: Where it Comes From and Why it is Unconstitutional

So I saw the 9/11 fee and maybe I have been asleep for the past decade, but it was recently increased. I decided to peruse the final rules and docket information and I have a few concerns I’ve outlined below.

From the preambles summary:

“The security service fee will apply to passengers using frequent flyer awards for air transportation, but may not be imposed on other nonrevenue passengers”

Why was this aimed at specifically rewards based flights? Well when I checked out the other related publications, well it turns out there was no economic analysis at all…

“In addition, it is a significant rule within the meaning of the Executive Order and Department’s policies and procedures because it may impose significant costs on air carriers and foreign air carriers. An assessment in accordance with the Executive Order will be conducted in the future. No additional regulatory analysis or evaluation accompanies this rule. TSA has not assessed whether this rule will have a significant economic impact on a substantial number of small entities as defined in the Regulatory Flexibility Act of 1980. When no notice of proposed rulemaking has first been published, the Regulatory Flexibility Act does not apply.”

Right, so by declaring the regulatory act-which affects national economics- a national emergency, the regulatory rulemaking process can be bypassed to impose a burdensome regulatory authority. Right, it all makes sense now.

“According to section 44940(a)(1), the Under Secretary is responsible for determining the amount of the costs of providing these aviation security services. Section 44940(b) and (c) provides that the passenger security service fee must be reasonably related to the costs of providing civil aviation security services, but may not exceed $2.50 per enplanement or $5.00 per oneway trip. Section 44940(a)(1) also provides that the cost determinations by the Under Secretary are conclusive and are not subject to judicial review.”

Okay, so, so far, the newly created Under Secretary is given the authority to determine fiscal requirements to run a program (TSA) in which no economic analysis was completed. The fee is set, but the program costs are not and they are determined by an unelected, presidential appointee, granted the authority to make up his/her own ‘reasonable’ budget. Oh, and by the way his/her determinations “are conclusive and are not subject to judicial review.” At this point, the president declared an executive order bypassing the rulemaking process established through congressional statute to control the regulatory authority of the executive branch. The president appoints a public official who has the authority to assign a budget and spend American tax revenue, and on top of the disregard for statutory rulemaking procedures, there will also be no judicial review.

Great, moving right along…

“The fee is set at the maximum amount permitted by ATSA because the costs of
providing civil aviation security services, as determined by the Deputy Secretary, are greater than the amount that would be recovered by the collection of fees that are reasonably related to these costs. Specifically, the Deputy Secretary has determined that the costs of providing civil aviation security services under section 44940 not already funded from other sources will conservatively exceed $1 billion in fiscal year 2002 and that fees collected at the statutory maximum would yield less than $1 billion in fiscal year 2002, assuming that collections begin on February 1, 2002. It should be noted that DOT expects revenues from security service fees to fall short of the amount required to cover civil aviation security service costs. In such a case, ATSA requires that air carrier fees be assessed in order to cover the shortfall. This assessment will be accomplished through a separate notice published in the Federal Register during fiscal year 2002.”

Interesting, off the bat we now know this fee won’t even cover the costs of this program who’s cost is yet to be determined. At some point in the future, the administration will re-evaluate costs and increase the fee.

“The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Public Law 104–4 on March 22, 1995, is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments.”

Title II of that act requires the effects of said reforms to be analyzed if they cross a 100 million dollar expenditure (“state, local, and tribal governments, in the aggregate, or by the private sector”) threshold.

“The requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply when rulemaking actions are taken without the issuance of a notice of proposed rulemaking. Accordingly, the TSA has not prepared a statement under the Act.”

So once again, the congressional, regulatory means set in place to curb unchecked executive spending and expansion have been blatantly disregarded through an executive action allowing complete bypass of statute.

Here is one more doozy, the final rule also puts in place means for the Under Secretary to audit carriers who collect fees for less than 50,000 persons.

“Direct air carriers and foreign air carriers must allow any authorized representative of the Under Secretary, the Secretary of Transportation, the Inspector General of the Department of Transportation, or the Comptroller General of the United States to audit or review any of its books and records and provide any other information necessary to verify that the security service fees were properly collected and remitted consistent with this part.”

This final rule does not specify on any level the information which it can review or seize from private entities. An agent of the Under Secretary can audit or review any of its books and records. Seems like the Department of Transportation has the ability to review any and all passenger information- not limited to ANYTHING.

sources: http://www.tsa.gov/sites/default/files/assets/pdf/2002_03_28_data_collection_amendment.pdf

http://www.tsa.gov/sites/default/files/assets/pdf/2001_12_31_original_regulation.pdf

http://www.tsa.gov/sites/default/files/publications/pdf/2014_06.20_Adjusted_IFR.pdf