Proposed Methodologies to Cure the No-Fly List’s Current Violations of the Due Process Clause for Affected U.S. Citizens

Authors

Sierra Stone, Southern Methodist University, Dedman School of LawFollow

Abstract

Often, the No-Fly List is a helpful tool that increases the safety of commercial aviation for U.S. citizens flying domestically and internationally. The TSA and various intergovernmental agencies utilize a nomination process and those who meet the requisite criteria are added to a database and can be entered into the No-Fly List. Once being placed on the “List,” an individual is no longer allowed to board a flight flying anywhere within or over U.S. airspace. However, for a small number of people, this deprivation of the ability to fly came unjustifiably and without realistic opportunities to be removed from the List. This research is important because it pertains to U.S. citizens, some of whom were never charged with a crime, and the loss of their ability to participate in a commonly used method of transportation. Additionally, with recent pushes by U.S. lawmakers to expand the usage of the No-Fly List, it is more important than ever to ensure the placement of individuals on the List was done in a constitutional way.

The majority of discourse in this field of research was done prior to recent litigation in which federal courts urged the U.S. government to reform the notification and redress processes in place at the time. Because of this, there is a need to examine the evolution of the No-Fly List and what procedures are still lacking. It is this comment’s perspective that more protections are needed to ensure the due process rights of Americans are not being evaded by their own government.

It should be mentioned that while this comment focuses on the unique subset of Americans who are placed on this list without feeling it is justified or in a way that violates the U.S. Constitution, it is not this comment’s intention to diminish the validity and usefulness of the No-Fly List for our nation’s safety. This comment merely intends to explore methods the U.S. government could implement to ensure its citizens are protected in accord with the Constitution.

After exploring the recent litigation in this area, this comment provides three recommendations as to how the List’s procedures could be heightened to better protect individual’s procedural due process. Those three recommendations are notifying individuals of their placement immediately, increasing the standard required to add an individual to the List, and treating the redress proceedings more like a criminal proceeding via an adversarial hearing.

Recommended Citation

Sierra Stone, Proposed Methodologies to Cure the No-Fly List’s Current Violations of the Due Process Clause for Affected U.S. Citizens, 89 J. Air L. & Com. 655 (2024)