>> Being blocked from air travel is indeed a violation of liberty.
Very much depends on how permissive your definition of liberty is. Not trying to be pedantic, this is actually a pretty big issue in constitutional law. It does seem to be a violation of due process, at the very least. An aggressive attorney may even allege a violation of the Equal Protection Clause in skirting the rebuttal of "there is a way to challenge it by appealing directly to the court," as well as the cases where citizens only discovered their inclusion by arriving at the airport.
This is a pretty important case in terms of defining the scope of federal agency's power (can agencies create regulations that burden various classes of people differently without providing notice or a way to contest your inclusion simply?) that could ripple out to non-law enforcement and homeland security agencies.
A follow up on due process, from Wikipedia: notified of the accusations, to confront the accuser, to obtain witnesses and to retain counsel.
While Wikipedia is not case law, having done a year in law school, I can attest that those pages are some of the most accurate out there. Definitely seems as though the notice requirement, in particular, is not being met by the government, as the punishment (not being able to fly) is being discovered prior to the accused even having the limited options presented to them. There's also good arguments that their right to counsel and trial by jury is being violated (although there are some larger loopholes for avoiding those - namely that trial by jury and some other 6th Amendment protections only being available in criminal trials, which I assume the government would dispute, having never formally filed charges, as well as the hazy catch-all the US has learned to use - classifying those who it wants to treat as criminals without having to obey constitutional and legal standards as enemy combatants. I doubt they would resort to this, however, as it would be inevitable that someone misclassified would get some media traction, and potentially force a judicial ruling on enemy combatant status, which is not in US interests).
It's not pedantic. Liberty is definitely one of those rights that isn't 100% clear. The law is sometimes unfair/rough when it comes to balancing the rights of the individual against the rights of the state to protect against terrorism (real or perceived).
And then we go and revoke the passports of people who are behind on child support payments, which isn't even a crime, and suddenly restricting the ability of people to travel becomes something the government can use any time it wants without a court order with no clear reason why.
Definitely think this area of law can use some refinement to protect all interests more fairly.
>> Definitely think this area of law can use some refinement to protect all interests more fairly.
In many cases, this is likely true. However, the nature of the word (which doesn't have a definition clearly defining it), means that adding clear definitions to it begins to risk what the founders intended to avoid by not enumerating any rights (hence the Bill of Rights as amendments, including the 9th Amendment). Again, all this suggests to me that due process and equal protection, rather than creating a new, judicially defined right to travel, will be clearly clarified as the crux of the opinion should it hold. The higher court can just defer to stare decisis and judicial restraint on the rest.
Great big IANAL here, but isn't due process something only the judicial branch can do? Do the police (i mean, the executive branch) get to strip liberties all willy nilly, and then you have to go to court to get those liberties restored?
AFAIK, it's not a judge that orders the addition to the no fly list, it's someone in the executive branch.
Due process encompasses everything involved in the enforcing of the laws and regulations - from how evidence is collected to having your Miranda rights read to receiving notice. And yes, should the police strip you of your due process rights, your only recourse is to go to court (or flee the police, which opens you up to other problems). You'd likely get compensation for it though, and the police would be severely punished as a deterrent to future abuses.
To your last point, this is likely an issue - can a non-judicial, unelected, non-executive branch agency (I'm a little unsure of if there are agencies that aren't technically executive for Constitutional purposes, but I think most would agree that the FAA doesn't seem like an executive agency) add someone to a no-fly list? Is it civil? Criminal? Or simply regulatory (the agency could try and argue that it isn't being punitive, it just set up eligibility criteria that those on the list did not meet - a really tenuous argument, but it would be logically consistent and open up comparisons to things like qualifying for aid and slippery slope arguments about due process invalidating all those eligibility criteria).
That seems to be overly optimistic. While compensation lawsuits for police misconduct are frequently successful, firing a bad cop is very hard and prosecuting is even harder, due to the enormous strength of the police unions and the notorious "blue wall" which frequently blocks all attempts for investigation.
Sorry, didn't mean to imply that this is what happens. Just that by design, it's what should happen (I was addressing a specific comment who posed a hypothetical). Your recourse to having your rights forcibly removed by police is to take it to court, where punishment will ideally be administered to fit the violation.
Due process is a guarantee made to citizens. The form it takes or method it is delivered by is not overly specific, and there is nothing about it that mandates it be scoped to one particular branch of government. If it's the executive branch handing down restrictions of liberty, well then I guess it's the executive branch that is responsible for ensuring due process.
The courts always have a role to play when another branch has overstepped its powers, such as is the case here.[1] The administration must not abridge any rights, but it does so frequently (and is not held 'responsible' in any meaningful way), when this is the case, the judicial branch is responsible to ensure that the person affected does not suffer for it.
Very much depends on how permissive your definition of liberty is. Not trying to be pedantic, this is actually a pretty big issue in constitutional law. It does seem to be a violation of due process, at the very least. An aggressive attorney may even allege a violation of the Equal Protection Clause in skirting the rebuttal of "there is a way to challenge it by appealing directly to the court," as well as the cases where citizens only discovered their inclusion by arriving at the airport.
This is a pretty important case in terms of defining the scope of federal agency's power (can agencies create regulations that burden various classes of people differently without providing notice or a way to contest your inclusion simply?) that could ripple out to non-law enforcement and homeland security agencies.