Just as the nation prepares for heavy air travel over the Christmas holiday, a radical federal judge in California has temporarily blocked a provision of the Aviation and Transportation Security Act that requires airport screeners to be U.S. citizens.
Federal District Judge Robert M. Takasugi, of the central district of California, handed down the ruling prior to hearing a civil case brought by the American Civil Liberties Union (ACLU) on behalf of nine foreign nationals who stand to lose their screener jobs now that the positions have been federalized. Takasugis ruling came after only a brief pre-trial hearing, but it essentially settles the matter before the trial even begins.
For now, Takasugis temporary injunction applies only to the plaintiffs in the suit, who, thanks to the order, can apply to become non-citizen federal airport screeners. However, a final ruling in favor of the plaintiffs could result in new lawsuits by 8,000 legal-resident aliens fired from their airport jobs this year, and the re-hiring of many foreigners as airline screeners.
Takasugi wrote in his ruling that the government had not established that "the exclusion of all non-citizens is the least restrictive means to further the governmental interest in improving aviation security." He did not elaborate on why Congress is constitutionally obligated to use the "least restrictive" means.
In his court complaint, ACLU attorney Mark Rosenbaum argued that the citizenship requirement "denies plaintiffs the equal protection of the laws guaranteed to them by the 5th Amendment to the United States Constitution." Rosenbaum did not return phone calls from HUMAN EVENTS.
The Constitution itself discriminates against non-citizen U.S. residents and even naturalized citizens by forbidding them from running for President.
Justice Department lawyers argued in court papers that air travelers would feel more secure with the knowledge that they were being screened by Americans. "The knowledge that only fellow citizens, who owe permanent allegiance to the United States, are responsible for their safety encourages people to return to the airways," they wrote.
But Takasugi-who as a teenager spent three years with his family in an internment camp during World War II-rejected this argument after only a brief hearing last month. He also rejected the Justice Departments contention that the screeners are comparable to police officers, in spite of the fact that congressional Democrats, in arguing for the federalization of airline screeners, consistently made the comparison. Law enforcement officers are subject to a citizenship requirement.
The government also argued that the requirement amounts to a regulation on immigration, and therefore falls well within the scope of congressional authority. The judge also discounted this argument.
Takasugis temporary injunction against the airline screeners "citizens only" requirement is the judges second foray into the war on terror.
The first came in late June, when Takasugi ruled unconstitutional the process by which the government designates foreign groups as terrorist organizations. He struck down a 1996 anti-terrorism law on the grounds that terrorist groups such as Hamas and Hezbollah are unfairly denied the opportunity to challenge the State Departments "terrorist" designation in court. He then dismissed the governments case against seven people accused of funneling charitable donations to an Iranian terrorist group. The ruling threw into disarray the governments post-September 11 strategy for pursuing terrorists and those who fund them.
A Justice Department spokesman told HUMAN EVENTS that the June ruling was under appeal as of last month. However, the appeal will be heard by the liberal 9th Circuit Court of Appeals, which is hardly consoling to conservatives. A panel from that court last summer ruled that the Pledge of Allegiance was unconstitutional.