On the 20th anniversary of the creation of the Transportation Security Administration, the Freedom to Travel Act of 2021 (H.R. 6030, “To protect the right to travel by common carrier”), has been introduced in the U.S. House of Representatives by Rep. Paul Gosar (R-AZ) and referred to the Committee on Transportation and Infrastructure and the Committee on Homeland Security.
If enacted into law, the Freedom to Travel Act would be the most significant step toward bringing the TSA within the rule of law since the creation of the TSA 20 years ago this week with the enactment of the Aviation and Transportation Security Act (ATSA) in 2001. It would rein in the TSA’s ability to substitute secret, extrajudicial edicts for court orders restricting American’s rights, and would remove key barriers that have stood in the way of judicial review of TSA actions and legal redress for those whose rights have been violated.
The 20th anniversary of the creation of the TSA is an apt moment for Congress to step back from the post-9/11 panic that drove the enactment of the ATSA, take a deep breath, consider what it has actually wrought, and begin to restore the historic right to travel that the TSA has been steadily chipping away at for the entire 20 years of its existence.
The Freedom to Travel Act would create no new rights, but would codify in Federal law an explicit right to travel by common carrier. Courts have recognized such a right, but have often struggled to find an explicit source for it or to assess its significance.
Given that human rights are inherent in our humanity and don’t depend on any statute or text, it shouldn’t be surprising that they aren’t always grounded in explicit statutory language. But ambiguity as to the source of the right to travel and the obligations of common carriers has made it easier for courts to brush off complaints of violations of that right as not having stated a cognizable claim, a claim that involves a fundamental (rather than a less significant) right, or a claim for which the courts have the power to grant redress.
The Freedom to Travel Act would apply to interstate common carriers in all modes of passenger transportation: airlines, railroads including Amtrak, interstate buses, and ferries.
A common carrier, by definition, has a duty to transport all would-be passengers, but the US Department of Transportation has been lax in enforcing that obligation. The Freedom to Travel Act would create an explicit new Federal cause of action against any common carrier, person, or Federal agency that denies or refuses transportation by common carrier to any individual except on the basis of (1) failure to pay the fare or comply with the conditions of carriage in the carrier’s published tariff; (2) failure or refusal to submit to an administrative search limited to a search for weapons, explosives, or incendiary devices likely to pose a threat to the safety of the conveyance, passengers, or crew; or (3) an order from a court of competent jurisdiction.