Jesse’s Issue: Former Gov. Jesse Ventura filed a lawsuit against the Dept of Homeland Security & the TSA alleging the organizations violated his constitutional rights to privacy through the airport’s “enhanced screening measures.”
Legal Rules: The question of whether the pat down invaded his privacy was not even dealt with by the court. The Court dismissed the case based on procedural rules. All challenges to TSA procedures must be done at the Circuit Court of Appeals, not the District Court. If you don’t play by the (procedural) rules, game over, Mr. Ventura.
Analysis: Regardless, Jesse’s claim likely would have failed. The concept of due process provides that certain rights – life, liberty, or property – cannot be deprived without constitutionally adequate procedures. The procedures provides a heightened level of protection against government interference.
The degree of protection, however, depends on the issue. In Jesse’s case, the right of privacy is a historically fundamental right and traditionally requires the highest level of scrutiny. Any rule/procedure which restricts or inhibits the right of privacy must pass the court’s “strict scrutiny” test. The test traditionally examines whether the government’s procedure is justifiably reasonable, and whether the procedure is the least restrictive method to meet the end goal.
The Supreme Court also determined that the right to travel is a fundamental liberty. Similarly, any restriction to travel must be narrowly tailored so that it does not overly inhibit travel. Ultimately, the Court’s goal is to find the right balance between fundamental rights to travel, privacy, and the government’s ability to adequately protect its citizens.
“… And in this Corner, we Have a Loser” In Jesse’s case, if the Court would have scrutinized the rights and procedures, Jesse would have lost. While I personally roll my eyes at pat downs, and shiver when I think about walking barefoot on LAX’s floor, the government’s requirements are not overly broad (they do not completely restrict my right to travel). Simply put, pat downs and screenings allow for travel, allow the government to implement procedural safeguards, address national security concerns, and do so in the least restrictive way possible.
As it stands now, pat downs stay… and his nickname probably won’t change to Jesse “The Scholar” Ventura.