[00:00:00] Speaker 05:
Case number 23-1290 et al.

[00:00:03] Speaker 05:
City of Billings et al.

[00:00:04] Speaker 05:
Petitioners versus Transportation Security Administration and David P. Pekoski Administrator.

[00:00:11] Speaker 05:
Ms.

[00:00:11] Speaker 05:
Allison for the petitioners, Mr. Overbold for the respondents.

[00:00:16] Speaker 02:
Morning, Council.

[00:00:17] Speaker 02:
Ms.

[00:00:17] Speaker 02:
Allison, please proceed when you're ready.

[00:00:27] Speaker 06:
Thank you, and good morning.

[00:00:30] Speaker 06:
I want to make two points clear from the outset.

[00:00:33] Speaker 06:
First, this case is not about whether aviation worker screening is important.

[00:00:39] Speaker 06:
It's about who should be doing it.

[00:00:41] Speaker 06:
And second, this case is not about a so-called shared responsibility for aviation worker screening between TSA and airport operators.

[00:00:50] Speaker 06:
It's about whether TSA can shift that responsibility for screening entirely to airports.

[00:00:57] Speaker 06:
To quote the TSA,

[00:00:59] Speaker 06:
In its record, the National Amendment places the responsibility to screen aviation workers at the airports on the airport operator.

[00:01:07] Speaker 06:
That's at Appendix 592.

[00:01:08] Speaker 06:
TSA will not provide training, nor will it prescribe how a search must be accomplished.

[00:01:15] Speaker 06:
That's at Appendix 741.

[00:01:17] Speaker 06:
And TSA's cost estimates show that airport operators will bear literally 99.9% of the costs of implementing and conducting the screening.

[00:01:28] Speaker 01:
So I thought your argument was even stronger in the sense of saying that TSA had

[00:01:39] Speaker 01:
the statutory responsibility to do this screening.

[00:01:44] Speaker 01:
Not that it should, but that it was required by statute.

[00:01:48] Speaker 06:
That's right.

[00:01:49] Speaker 06:
That's right, Judge Rogers.

[00:01:51] Speaker 06:
They have the statutory authority.

[00:01:53] Speaker 06:
And the way they carried it out in this case, even if they were permitted to shift this to airports, our alternative argument is the way that they carried it out here does not meet the standard for agency review.

[00:02:06] Speaker 02:
It's not just that they have the statutory authority, because I think everybody agrees that they could do it if they wanted to.

[00:02:10] Speaker 02:
Instead, the way you read the statute is that only TSA can do it.

[00:02:13] Speaker 06:
Only TSA can do it.

[00:02:14] Speaker 06:
They do not have the statutory authority to shift it to airport operators.

[00:02:18] Speaker 06:
That is our position.

[00:02:19] Speaker 02:
So, I mean, we can have

[00:02:21] Speaker 02:
a kind of semantic debate about whether it's actually a shift, because that depends on what the baseline is beforehand, whether anybody was doing this physical screening at least beforehand.

[00:02:30] Speaker 02:
But just putting that to one side for a second, you don't disagree that under the security directives that existed at the time the national amendment was promulgated, under those security directors, airport operators had some responsibility vis-a-vis the access of airport workers to secured areas.

[00:02:49] Speaker 06:
Under those security directives airport operators had no responsibility for physical screening and that is the dramatic.

[00:02:56] Speaker 02:
I'm talking about responsibility to do something vis-a-vis the access of airport workers to secured areas.

[00:03:04] Speaker 06:
That's right, Your Honor.

[00:03:06] Speaker 06:
Airport operators had to check ID, right?

[00:03:11] Speaker 06:
They had to be sure that there weren't obvious prohibited items being visibly carried into a security area.

[00:03:18] Speaker 02:
Why do you say obvious?

[00:03:19] Speaker 06:
Visual, visually.

[00:03:20] Speaker 06:
It was all visual inspections, right?

[00:03:23] Speaker 06:
So they could, for example, try to limit the number of access points at the airport

[00:03:31] Speaker 06:
constrict constrain the areas that people were coming in.

[00:03:34] Speaker 06:
So they had roles like that, but they had no.

[00:03:37] Speaker 02:
Based on your reading of the statues.

[00:03:40] Speaker 02:
Did those functions.

[00:03:43] Speaker 02:
that were imposed, obligations imposed upon airport operators, were those annulled by the statutes so that now the airport operators no longer have to do those?

[00:03:54] Speaker 06:
No, Your Honor, no.

[00:03:56] Speaker 06:
The key, what ATSA did was of course create a federal, not only a federal security force, but a federal screening

[00:04:04] Speaker 06:
And with respect to screening, ATSA made it clear in the legislative history, even if you acknowledge that the language of ATSA was ambiguous and TSA has interpreted it two different ways in past cases.

[00:04:18] Speaker 06:
It's clear in the legislative history that the screening force was federal.

[00:04:24] Speaker 06:
So that didn't change obligations that the airport operator would have to control sort of its perimeter to be sure that people have proper IDs.

[00:04:34] Speaker 02:
The ID checks, they don't qualify as screening.

[00:04:37] Speaker 06:
No, so even under the old security directives, those were actually referred to as inspections, inspections for IV media, right?

[00:04:47] Speaker 06:
Under the national amendment, the TSA refers to screening and defines it as it has to be a search of the outer garments and the body and belongings.

[00:05:03] Speaker 06:
And when there were questions about this in the comments, and you'll see this in the TSA's disposition of the comments, there were many questions about

[00:05:14] Speaker 06:
whether this new screening was something different than the visual inspections.

[00:05:18] Speaker 06:
And TSA repeatedly said, yeah, yeah, no, visual inspections are not adequate.

[00:05:24] Speaker 06:
You have to do the physical screening as required under the national amendment.

[00:05:29] Speaker 06:
That was a sea change from what airport operators were doing.

[00:05:33] Speaker 02:
So the way you understand the statute to work is that your view is that after 2016 and 2018,

[00:05:42] Speaker 02:
we should read those statutes to make clear Congress's intent that what you're referring to as screening, which apparently is physical screening, that that part of it has to be conducted by TSA officers and only TSA officers.

[00:05:55] Speaker 02:
Something that falls short of physical screening, which is how you construe screening, can still be done by and the imposition can still be imposed upon airport operators.

[00:06:08] Speaker 06:
That is right.

[00:06:09] Speaker 06:
That what airport operators were doing before with respect to visual inspections, they can do.

[00:06:15] Speaker 06:
I mean, I would say with respect to the 2016 and 2018 acts, those acts specifically refer to physical inspections.

[00:06:23] Speaker 06:
I mean, the language in those acts is in 2016, TSA must expand the use of transportation security officers and inspectors

[00:06:31] Speaker 06:
to conduct physical inspections at airport workers.

[00:06:35] Speaker 02:
There's no doubt that they cover physical inspections.

[00:06:37] Speaker 02:
I don't think anybody's disputing that.

[00:06:38] Speaker 02:
I think the question is, are you right in saying that the physical inspections that are called for by the national amendments, that the statutes require TSA and only TSA to conduct those kinds of, actually, we shouldn't call them inspections, I guess.

[00:06:53] Speaker 02:
We should call them just to avoid.

[00:06:56] Speaker 06:
Searches.

[00:06:57] Speaker 02:
Searches.

[00:06:57] Speaker 02:
TSA and only TSA.

[00:07:00] Speaker 02:
and conduct those physical searches.

[00:07:01] Speaker 06:
That's right.

[00:07:02] Speaker 06:
And I want to start, I don't want to lose the point from ATSA, right?

[00:07:05] Speaker 06:
Starting with ATSA, even if the language of ATSA codified at 44901A and 44903 is ambiguous, the legislative history is not.

[00:07:16] Speaker 06:
And it resolves any ambiguity about TSA's exclusive role for screening obligations.

[00:07:24] Speaker 06:
We've cited at length in our brief, and I'm not going to repeat it all here.

[00:07:28] Speaker 06:
But the theme, the common theme, is the federalization of airport screening.

[00:07:33] Speaker 06:
Sponsors of the bill spoke directly about screening passengers, baggage, and employees by federal law enforcement personnel.

[00:07:44] Speaker 02:
What do you make of 1933A's reference?

[00:07:48] Speaker 02:
to shared cost and feasibility to airports, airlines, and the TSA.

[00:07:54] Speaker 06:
That's in the 2018.

[00:07:55] Speaker 02:
Implementing enhanced employee inspection measures.

[00:07:58] Speaker 06:
So what, so the 2018 Act, which you're referring to the TSA Modernization Act.

[00:08:05] Speaker 06:
So first, there was, again, clear language in that Act that TSA had to ensure TSA led.

[00:08:14] Speaker 06:
random physical inspections.

[00:08:16] Speaker 06:
The provision that you're referring to is a separate provision which says, and while TSA studies how to enhance these TSA-led random physical inspections, it should perform feasibility studies about all aspects of

[00:08:34] Speaker 06:
you know, aviation worker safety and the insider threat by looking at costs that both that airports, airlines and TSA would bear and the and the effectiveness of that plan.

[00:08:49] Speaker 06:
And that is the cost benefit analysis that that TSA has not undertaken.

[00:08:55] Speaker 06:
One of the arguments we make in our claim that this action

[00:08:59] Speaker 06:
even if TSA could shift the obligation that it's arbitrary and capricious, is that TSA actually did not follow that directive.

[00:09:07] Speaker 02:
Aside from that, because I'm not sure exactly what that has to do with the statutory authorization question, am I understanding your answer correctly in that what you're saying is the shared costs that are referred to in subsection A, those cover a broader array of functions than the physical screening.

[00:09:25] Speaker 06:
Of course.

[00:09:26] Speaker 02:
If you think that physical screening, this same statute,

[00:09:29] Speaker 02:
makes clear that TSA and only TSA can be responsible for physical screening.

[00:09:34] Speaker 06:
That's right.

[00:09:35] Speaker 06:
That could cover all of the efforts that we talked about at the beginning.

[00:09:44] Speaker 06:
Limiting access points.

[00:09:47] Speaker 06:
Other examples would be putting up more CCTV cameras.

[00:09:53] Speaker 06:
having, you know, making sure that they enhance their badging requirements are all kinds of things.

[00:09:59] Speaker 02:
Why don't, why is it clear that for the TSA led part of it, which I can completely understand why you focus on that, that that's not a reference to athletes.

[00:10:10] Speaker 06:
So because Atlas was at, by the time of 2018 had been in place for a couple of years, there was a predecessor to Atlas as well.

[00:10:20] Speaker 06:
But the, what was happening under Atlas and TSA acknowledges this on page 50 to 51 of its brief, Atlas was doing, you know, random ID checks and even more isolated physical searches.

[00:10:35] Speaker 06:
I mean, TSA says in its brief at page 50,

[00:10:38] Speaker 06:
that the status quo under Atlas before the national amendment was that workers were not being searched, were not being physical searched.

[00:10:45] Speaker 06:
That's what needed to change.

[00:10:47] Speaker 06:
And so Congress is saying, you know, what TSA is doing in 2018 under the Atlas program is not achieving the enhanced employee physical inspections that Congress instructed TSA to do.

[00:11:00] Speaker 06:
And so TSA needs to lead those inspections.

[00:11:04] Speaker 06:
And the 2018 Act

[00:11:06] Speaker 06:
you know, incorporates the 2016 Act, which talked about, you know, TSA conducting the inspections with their own employees.

[00:11:15] Speaker 06:
The 2018 Act says, you know, in accordance with the Security Act, TSA needs to enhance this capability.

[00:11:25] Speaker 06:
So the 2016 and the 2018 Act, Your Honor, I think clearly support the position that, I mean, I think they have to be read to support that TSA

[00:11:36] Speaker 06:
has to conduct the screening and lead the screening.

[00:11:39] Speaker 06:
And even if, I just wanna make a point that even if this were kind of shared in any way, that where TSA has said, it's not doing any of this enhanced screening, it's shifting it all to airports, 99.9% of the cost to airports.

[00:12:02] Speaker 06:
That cannot be square with the language of the 2016 and 2018 acts, which certainly suggest at the very least that TSA has to be leading, administering, supervising this effort.

[00:12:16] Speaker 06:
At the very least, it suggests that.

[00:12:18] Speaker 06:
And that's not what's happening under the national amendment.

[00:12:22] Speaker 06:
So with that, I'll move to the arbitrary and capricious argument.

[00:12:28] Speaker 06:
briefly, that there are three major concerns that airport operators have raised that I just want to hit.

[00:12:39] Speaker 06:
First is, and this is the overarching concern about the entire national amendment, is that Congress again created TSA to ensure that federal screening was happening, right?

[00:12:53] Speaker 06:
And the airports said in the comments,

[00:12:56] Speaker 06:
Why are we in a better position to do this than you, TSA?

[00:12:59] Speaker 06:
You were created to do this.

[00:13:00] Speaker 06:
You've been doing it for over 20 years.

[00:13:02] Speaker 06:
You're staffed, equipped.

[00:13:04] Speaker 06:
No response.

[00:13:05] Speaker 06:
Nowhere in the record is there any discussion of why local airport operators or even worse, in some cases, low bid public contractors will be doing this work.

[00:13:17] Speaker 06:
There's no discussion of that.

[00:13:18] Speaker 06:
The second issue airport commentators raised is about the potential liability associated with the physical screening.

[00:13:24] Speaker 06:
Again, no response.

[00:13:27] Speaker 06:
TSA, well, very dismissive, I would say.

[00:13:30] Speaker 06:
They say that, oh, entities will be immune.

[00:13:34] Speaker 06:
But I mean, that's not right.

[00:13:36] Speaker 06:
Whether an entity is immune will depend upon state law and whether it even qualifies for governmental immunity.

[00:13:42] Speaker 06:
And it's not a hypothetical issue, because we saw what happened with the Massachusetts Port Authority after 9-11, right?

[00:13:49] Speaker 06:
That they were not immune from suit.

[00:13:52] Speaker 06:
They litigated that case for 10 years.

[00:13:54] Speaker 06:
They only got out of the case because at the time airports had no responsibility whatsoever for screening.

[00:14:01] Speaker 06:
That's not an argument that airports were gonna have after the national amendment.

[00:14:05] Speaker 06:
So these liability concerns are serious and not hypothetical.

[00:14:09] Speaker 04:
Sometimes when we try to figure out whether an agency action was reasonably explained,

[00:14:17] Speaker 04:
The problem is we really don't know why they did what they did.

[00:14:21] Speaker 04:
They haven't told us in clear terms why they made the choice that they did.

[00:14:26] Speaker 04:
Here it actually does seem pretty clear.

[00:14:29] Speaker 04:
This is expensive and they didn't want to pay for it.

[00:14:35] Speaker 04:
They might not have the statutory authority to make that choice, but assuming we're in a world where they do have the statutory authority to pass this responsibility on to you seems like a quite reasonable decision.

[00:14:49] Speaker 06:
Respectfully, Judge Walker, I don't think it would be reasonable for TSA's analysis to start and end with we don't have the money, which is what it does.

[00:15:00] Speaker 06:
First, they actually don't even analyze, we see nowhere in the record whether they could reallocate resources like the 2016 Act told them to do, whether they could somehow fund some portion of this,

[00:15:18] Speaker 06:
through TSA resources, there's no discussion of any of that.

[00:15:21] Speaker 06:
But even if those budgetary concerns were supported, the case law does not allow TSA to not even consider important aspects of the problem.

[00:15:35] Speaker 06:
I mean, the most recent in the Supreme Court's last term, we got the Ohio versus EPA case where the court made very clear that if you don't consider an important aspect of the problem,

[00:15:49] Speaker 06:
you don't meet the standard for agency rulemaking.

[00:15:51] Speaker 04:
And here, I've just mentioned two major things that the airport- Let's assume that the cost of this over five years is $300 million, which I think is the figure that is in the record.

[00:16:05] Speaker 04:
Do you doubt that the benefits of this screening are higher than $300 million?

[00:16:13] Speaker 06:
Well, we can never know that because there's been no cost-benefit analysis.

[00:16:17] Speaker 06:
And that's precisely why Congress, both the House Appropriations Committee and the Senate Appropriations Committee, urged TSA to withdraw this amendment and do the cost-benefit analysis.

[00:16:28] Speaker 06:
We have no idea if this is going to be effective, efficient.

[00:16:34] Speaker 06:
We have nothing on that, nothing in the record.

[00:16:37] Speaker 04:
I have some commandeering questions, but I don't want to cut off this topic if you don't mind.

[00:16:43] Speaker 04:
On the on the commandeering issue.

[00:16:46] Speaker 04:
I think this rule covers 165 airports.

[00:16:51] Speaker 04:
I remember correctly.

[00:16:52] Speaker 04:
Does that sound right?

[00:16:53] Speaker 06:
That's right.

[00:16:54] Speaker 04:
And of those airports, they're all owned by state or local governments.

[00:17:01] Speaker 06:
Yes, all owned and operated by state and local governments.

[00:17:04] Speaker 04:
There are these things called

[00:17:08] Speaker 04:
exclusive area agreements, which I take to be sort of a little wing of the airport that is operated by an airline.

[00:17:19] Speaker 06:
Right.

[00:17:19] Speaker 06:
Effectively a sublease of the airport's property.

[00:17:22] Speaker 06:
Right.

[00:17:22] Speaker 04:
And this this rule covers that.

[00:17:27] Speaker 04:
Is that correct?

[00:17:28] Speaker 06:
If well, because it covers the

[00:17:32] Speaker 06:
airport secured areas of the airport to the extent that the airport has chosen to, with TSA approval, allow an air carrier to operate an area like that, then the air carrier would be responsible for operating that area.

[00:17:47] Speaker 04:
So why shouldn't we think of this rule as both on its face applying

[00:17:54] Speaker 04:
to private and public entities, and in practice, applying to private and public entities?

[00:18:02] Speaker 06:
Well, I've got a couple of responses to that.

[00:18:05] Speaker 06:
First, we have no idea about the number of what these exclusive area agreements are.

[00:18:12] Speaker 06:
We see no reference to them in any of the cost analysis or TSA's analysis.

[00:18:17] Speaker 04:
I think it might be a problem for you because in in breaking the court was.

[00:18:24] Speaker 04:
Unpersuaded that the.

[00:18:28] Speaker 04:
the commandeering was of state entities because though it could have covered some private entities, it wasn't clear in Burkene whether the amount of private entities was minuscule, in which case it might have been a commandeering, or whether the amount of private entities that it was going to affect was significant.

[00:18:52] Speaker 06:
Well, I mean, I think here, based on the record, we could reach the conclusion that it is that the vast majority of this is going to apply to the airports themselves because there is no reference whatsoever to any

[00:19:12] Speaker 04:
exclusive area agreements, but they could be 7030 or it could be 99.99 versus 0.01.

[00:19:20] Speaker 04:
I hope I'm at the right number zeros there, right?

[00:19:24] Speaker 04:
But how do we know which it is?

[00:19:27] Speaker 06:
Well, I mean, that's information within the knowledge of TSA across the board and we don't have that, but I will say that even if what's sort of different here than than for keen is that we've got a situation where.

[00:19:41] Speaker 06:
I mean, it's not like the airport operator still owns and operates the airport.

[00:19:47] Speaker 06:
As I said, this is effectively like a sublease saying, you can take over these particular obligations, assuming that it's approved.

[00:19:55] Speaker 06:
But it's not like that private party doesn't have any, like it doesn't independently outside of the fact that they're at an airport, right, apply to them.

[00:20:04] Speaker 06:
Say the private party didn't do it.

[00:20:07] Speaker 04:
Whose responsibility would that be?

[00:20:10] Speaker 04:
Would it be the airport's responsibility?

[00:20:12] Speaker 06:
Well, under these agreements, you know, my understanding is that the private party does have an obligation, but ultimately, like any time you own and operate, you know, a facility, if they don't do their job, I'm pretty sure the owner or the operator is going to end up on the hook too, right?

[00:20:31] Speaker 06:
That's helpful.

[00:20:32] Speaker 04:
Let's now imagine that there are none of these private agreement things, and it's just all state-owned airports.

[00:20:42] Speaker 04:
I think in other countries, the airports are not always owned by the government.

[00:20:46] Speaker 04:
I think that there are some privately owned airports, maybe many privately owned airports, big airports.

[00:20:54] Speaker 04:
I'm trying to figure out whether I should think of running an airport as the kind of thing that is an exercise of a state sovereign power, like what was happening in Prince, or whether the fact that it is run by the government doesn't necessarily mean that it has to be run by the government.

[00:21:21] Speaker 06:
Well, and I think, I mean, I will start with the, you know, the court's decision in Garcia, which says, you know, the, the, the, the analysis doesn't really depend any longer on whether it's happening in a proprietary capacity or in a governmental capacity.

[00:21:35] Speaker 06:
Right.

[00:21:35] Speaker 06:
But the, but this idea that so, so airports in the United States, you know, play a critical national function.

[00:21:46] Speaker 06:
Right.

[00:21:47] Speaker 06:
And the,

[00:21:48] Speaker 06:
And so, I mean, yeah, the airports do some things in their proprietary capacity, but the role that they play in the United States, and this might be different in other countries, is intertwined with the national interest.

[00:22:05] Speaker 02:
So is it impossible for a private entity to run an airport?

[00:22:09] Speaker 06:
In the United States?

[00:22:10] Speaker 06:
Yeah.

[00:22:13] Speaker 06:
So none of these

[00:22:15] Speaker 06:
I don't have this at my fingertips.

[00:22:18] Speaker 06:
I think there might be one or two in the small airports in the entirety of the United States.

[00:22:24] Speaker 06:
There was a program that FAA began many years ago and has altered over time to encourage private involvement and to try to give some exceptions.

[00:22:36] Speaker 02:
I have the same kind of questions that Judge Walker has.

[00:22:37] Speaker 02:
But no one does that.

[00:22:39] Speaker 02:
No one does it.

[00:22:41] Speaker 02:
Is there something inherently

[00:22:42] Speaker 02:
about running an airport that makes it, as a matter of U.S.

[00:22:46] Speaker 02:
law and practice, a government function?

[00:22:49] Speaker 02:
And maybe, I think, I don't doubt the proposition that, as a practical matter, certainly all large airports and all even medium-sized airports maybe are run by some kind of local government, state government authority.

[00:23:00] Speaker 02:
But is there something inherent about running an airport?

[00:23:03] Speaker 02:
Because it wasn't apparent to me.

[00:23:05] Speaker 02:
that there's something inherent about running an airport that makes it governmental in nature.

[00:23:10] Speaker 06:
I think as a practical matter, that is the way airports have been run in the United States.

[00:23:15] Speaker 06:
And there are, you know, all over the country.

[00:23:18] Speaker 06:
You know why?

[00:23:18] Speaker 06:
There are authorities.

[00:23:20] Speaker 04:
You know why?

[00:23:21] Speaker 04:
There are no private airports.

[00:23:22] Speaker 04:
I'm genuinely curious.

[00:23:24] Speaker 06:
Why?

[00:23:24] Speaker 06:
Why are there no private airports?

[00:23:26] Speaker 06:
There are an enormous number of federal obligations that apply when you run an airport, including what you can do with the revenues when you're running an airport.

[00:23:40] Speaker 06:
It's very restrictive.

[00:23:43] Speaker 02:
not so restrictive in other countries and I think that discourages this is my practical I guess my question is this suppose I'm running a really an unbelievably successful company and I see that there's an opening for a hub.

[00:23:58] Speaker 02:
in some major metropolitan area that has one airport, let's say, and it's really not functioning so well.

[00:24:03] Speaker 02:
And so I just say, I run Acme Corporation.

[00:24:05] Speaker 02:
And I say, you know what?

[00:24:06] Speaker 02:
I'm going to open the Acme Airport, because I see a business opportunity here.

[00:24:10] Speaker 02:
It's going to be the best airport anywhere imaginable.

[00:24:14] Speaker 02:
Is there something in law that tells me that I can't do that as Acme Corporation?

[00:24:19] Speaker 02:
Or is there, it may be practically really difficult commercially to make it succeed.

[00:24:23] Speaker 02:
I get that.

[00:24:24] Speaker 06:
There's nothing in law that says you, a private entity, may not do it.

[00:24:28] Speaker 06:
There's a lot of law that applies to doing it that entirely discourages private entities from doing it, which is why the pilot programs have not gone anywhere.

[00:24:39] Speaker 02:
But they exist in the pilot programs.

[00:24:41] Speaker 02:
Those are government-initiated pilot programs?

[00:24:44] Speaker 06:
It's an FAA program to try to encourage private involvement, but it's never occurred.

[00:24:53] Speaker 06:
And that pilot program has been around, I want to say, for over 15 years.

[00:24:59] Speaker 06:
So as a practical matter, because of the burdens and obligations that come with running an airport

[00:25:08] Speaker 06:
with spending the money that you make, with issues like that, private entities have not chosen to get involved in that operation.

[00:25:18] Speaker 06:
And so as a practical effect, you've got all over the country, you know, authorities being set up by the states to run airports, municipal statutes being passed so that the municipality, somebody, will run the airport.

[00:25:34] Speaker 04:
I guess what I'm struggling with is

[00:25:39] Speaker 04:
the federal government cannot tell a state legislature how to run the legislature.

[00:25:45] Speaker 04:
And the federal government cannot tell a local sheriff's department how to run a sheriff's department.

[00:25:52] Speaker 04:
I think the federal government can tell an airport how to run an airport.

[00:25:57] Speaker 04:
And certainly if the airport were private, it could do that.

[00:26:01] Speaker 04:
And the fact that they happen to be public,

[00:26:06] Speaker 04:
I'm not sure that it changes the kind of big instinct I have, at least, that the federal government can tell an airport how to run an airport.

[00:26:18] Speaker 06:
So respectfully, I think saying that they don't have to be public does sort of minimize all of the reasons why they practically do have to be public.

[00:26:31] Speaker 06:
And on the prince point, I mean, this case,

[00:26:36] Speaker 06:
This situation, I think, is much closer to Prince than to Nebraska versus EPA and South Carolina and the South Carolina versus Baker in those cases, because what we've got here is you're telling the local and state governments

[00:26:57] Speaker 06:
that they have to regulate third party conduct.

[00:27:02] Speaker 06:
They're performing searches of private parties.

[00:27:07] Speaker 06:
And that is a lines with prints where the local sheriffs were told to run the background checks.

[00:27:14] Speaker 06:
Whereas in the other cases that TSA refers to, it's all about the government's own conduct

[00:27:23] Speaker 02:
participating in a regulated activity local sheriff's and I guess the question is suppose the.

[00:27:30] Speaker 02:
requirements that are in the national amendment applied to all airports.

[00:27:34] Speaker 02:
And you said that there's at least a couple of maybe small private airports.

[00:27:37] Speaker 06:
I probably should.

[00:27:39] Speaker 06:
This is my recollection.

[00:27:41] Speaker 06:
Sure.

[00:27:41] Speaker 02:
I'm not going to say.

[00:27:42] Speaker 06:
It's not in the record, but yes.

[00:27:44] Speaker 02:
And I'm not going to hold you to that.

[00:27:48] Speaker 02:
It just proves the proposition that it's at least possible for there to be a private airport.

[00:27:52] Speaker 02:
Let's just assume for arguments purposes there's a couple.

[00:27:55] Speaker 02:
Let's just say there's a couple of smaller ones.

[00:27:57] Speaker 02:
and let's just say the national amendment applies to all airports.

[00:28:00] Speaker 02:
I know they didn't apply to all airports and in part because of some of the concerns that were raised so it was in response to some concerns that were raised about scale of operations but let's just suppose the requirements of the national amendment apply to all airports and some of those a small number are private airports and let's just suppose also the federal government has a program in effect as you

[00:28:20] Speaker 02:
helpfully said that they do to encourage private airports.

[00:28:24] Speaker 02:
And what the federal government says is, look, we have this program where we want all airports, whether private or publicly owned, to do this on the premises.

[00:28:31] Speaker 02:
Yes, there's only a small number now.

[00:28:33] Speaker 02:
We hope there's more of private ones.

[00:28:35] Speaker 02:
But the bottom line is we want it to apply across the board.

[00:28:38] Speaker 02:
That seems different from Prince or other commandeering cases, because even if it's practically true that the lion's share of airports are public, a small number are private.

[00:28:49] Speaker 02:
And the federal government actually wants there to be more private.

[00:28:52] Speaker 02:
And it doesn't care whether it's private or public.

[00:28:53] Speaker 02:
It just wants these security functions to happen across the board.

[00:28:56] Speaker 06:
Well, the reason our position is that it's closer to Prince is because this is not a situation as you see in the cases where it's just this even handed

[00:29:06] Speaker 06:
application, because again, as a practical matter, I mean, I mean, I acknowledge there's not a law on the books that says private entities can't do this.

[00:29:15] Speaker 06:
But as a practical matter, based on the laws that are on the books, they're not doing it, which means the effect is to shift all of this cost.

[00:29:25] Speaker 02:
And as you had a situation in which it's 5050, and then for whatever reason, and the mandate is imposed at the time that it's 5050, there's 50% private and 50% public.

[00:29:35] Speaker 02:
And then for whatever reason, the private ones all shut down and the mandate continues.

[00:29:39] Speaker 02:
Because then the publicly owned ones bring a claim at that point and say, look, this used to be even handed.

[00:29:44] Speaker 02:
It's not even handed anymore as a practical matter right now.

[00:29:47] Speaker 02:
All this left is government.

[00:29:48] Speaker 02:
So that's a commandeering problem.

[00:29:50] Speaker 06:
I think under Prince, yes, because Prince focuses intensely on the

[00:29:55] Speaker 06:
costs that get shifted to the state and local governments, which is what's happening here practically, and the blame that will be shifted.

[00:30:03] Speaker 06:
And the liability concerns are at the core of these concerns.

[00:30:09] Speaker 04:
I have just one fact question related to this.

[00:30:13] Speaker 04:
The people who will be screened, at least some of them are not employees of

[00:30:22] Speaker 04:
the airport.

[00:30:24] Speaker 04:
Is that my right about that?

[00:30:25] Speaker 06:
Oh, many, many, many are not employees of the airport because this is a any aviation workers that work at the airport and would have access for some needs of access to a lot like Prince because you know, you've got a sheriff basically screening a citizen who doesn't have a who is not part of the organization of the sheriff's.

[00:30:48] Speaker 05:
Right, right.

[00:30:50] Speaker 04:
This is not just requiring a company to screen its own people.

[00:30:53] Speaker 04:
But on the other hand, I think there's some contractual relationship.

[00:30:58] Speaker 04:
Maybe it's a couple.

[00:30:59] Speaker 04:
Maybe it's a bank shot.

[00:31:00] Speaker 04:
But between the person who's going to be screened and the airport, the person who's going to be screened may have a contract with someone who has a contract with the airport.

[00:31:14] Speaker 04:
of there's some kind of like privity not not necessarily legal literal privity but there's some version of privity going on with who's doing the screening and who's being screened well and and but there is even if it wasn't in print even given that relationship though the national amendment

[00:31:33] Speaker 06:
regulates the conduct of those aviation workers sort of much, much differently than what was happening before, right?

[00:31:40] Speaker 06:
The idea that they, like anyone else at an airport, might be subject to a physical search by TSA.

[00:31:48] Speaker 06:
was one thing, you know, but now it's, they're saying like, regardless, even if you have, you're not an employee of the airport and you have some, as you say, some tangential relationship because you work at the airport.

[00:32:00] Speaker 06:
Now that local airport operator or one of their local contractors is, it can subject you to a routine search.

[00:32:10] Speaker 06:
I mean, that was entirely different than what was happening before the national amendment

[00:32:16] Speaker 06:
And so that, I think, does put this closer to the Prince situation.

[00:32:23] Speaker 02:
Can I ask you one last question, sort of getting back to the statutory argument?

[00:32:27] Speaker 02:
So suppose 2016 and 2018 laws never happened.

[00:32:32] Speaker 02:
They're not on the books.

[00:32:33] Speaker 02:
So all we're looking at is the statutory charters for TSA that are in place under the pre-existing statutes.

[00:32:41] Speaker 02:
Would you still be making the same argument that if TSA were to come up with a national amendment and impose the obligation to screen airport workers on airports, that the statutes would forbid that?

[00:32:53] Speaker 06:
Absolutely, Judge Srinivasan and we, as we've argued, even if you acknowledge that the statutory language is ambiguous, well then you don't have to defer to TSA's interpretation and you go to the legislative history

[00:33:09] Speaker 06:
And there is nothing ambiguous about the legislative history.

[00:33:13] Speaker 06:
The legislative history of what?

[00:33:16] Speaker 06:
Of ATSA, the Aviation, Transportation, and Security Act.

[00:33:19] Speaker 06:
And it's cited at link.

[00:33:20] Speaker 06:
That's the act that created the TSA.

[00:33:23] Speaker 02:
At that point, you'd be relying on the legislative history, but in terms of the text of the preexisting laws.

[00:33:29] Speaker 06:
Oh, we think the text supports our position.

[00:33:31] Speaker 06:
But TSA itself has given the text two different interpretations.

[00:33:36] Speaker 06:
I'd have to acknowledge that the text

[00:33:38] Speaker 06:
is ambiguous.

[00:33:39] Speaker 06:
We think it supports our position, and we've outlined why, and it refers to screening of all property going into the secured area.

[00:33:46] Speaker 06:
That should include aviation workers' property, and that's the same argument that TSA has made in a previous case, or the same interpretation that TSA has offered in a previous case.

[00:33:59] Speaker 06:
But even if, even if you find

[00:34:03] Speaker 06:
that the language is ambiguous on this specific question as to whether aviation workers are caught within that ambit.

[00:34:09] Speaker 06:
You go to the legislative history and what you see over and over again is TSA was created to create a federal screening process, federalized screening.

[00:34:20] Speaker 04:
You said three times that if it's ambiguous, you go to the legislative history.

[00:34:26] Speaker 04:
I would think if it's ambiguous,

[00:34:28] Speaker 04:
You might ask if it's a major question and you might then inquire into whether a 300 million dollar regulation over five years.

[00:34:36] Speaker 04:
I'm guessing 600 million dollar imposition over 10 years is a major question.

[00:34:43] Speaker 04:
And then if it's a major question, it would require more clarity from Congress than

[00:34:47] Speaker 04:
the ambiguity that you're describing?

[00:34:49] Speaker 06:
That would be accurate, Judge Walker, particularly under more recent Supreme Court precedent that raises a good question on the ambiguity point.

[00:35:01] Speaker 06:
But this is, I think, this is a rare situation maybe in which the legislative history is enormously robust.

[00:35:09] Speaker 06:
There were dozens of sponsors for this bill, and many of them spoke to the fact that they're creating TSA to be the federal screening force, so that every bag, every person, including workers, workers are called out in the legislative history, will be screened by that federal screening force.

[00:35:33] Speaker 01:
And let me just be clear on the record.

[00:35:35] Speaker 01:
If you win on your statutory argument, there's no need for the court to get to your 10th Amendment argument.

[00:35:44] Speaker 06:
That's true, Judge Rogers.

[00:35:46] Speaker 01:
Just to be clear.

[00:35:48] Speaker 06:
And I just could I finish with the point that what and this is what the commentators raised about this amendment is that when you look at that legislative history, what the National Amendment is requiring here

[00:36:02] Speaker 06:
Diffusing this responsibility to all local operators, including in many cases, contractors under local procurement laws is exactly what Congress said after 9 11.

[00:36:14] Speaker 06:
That would never happen again.

[00:36:16] Speaker 06:
And that's why the legislative history is so important here.

[00:36:20] Speaker 02:
We need a little bit of rebuttal time.

[00:36:22] Speaker 06:
I did.

[00:36:22] Speaker 06:
Thank you.

[00:36:23] Speaker 06:
Thank you.

[00:36:23] Speaker 02:
You're from the government now.

[00:36:31] Speaker 03:
Mr. Overwolf?

[00:36:34] Speaker 03:
Good morning.

[00:36:35] Speaker 03:
May it please the court and the government.

[00:36:38] Speaker 03:
I guess I'd like to start with statutory arguments and maybe first just look to the text of the statute on which my friends are sort of hanging their argument.

[00:36:49] Speaker 03:
Uh, 44901A says that TSA shall provide for the screening of all passengers and property.

[00:36:56] Speaker 03:
There's an ellipsis, but then that will be carried aboard a passenger aircraft.

[00:37:01] Speaker 03:
That just by its terms does not cover aviation workers.

[00:37:05] Speaker 03:
Um, so I, you know,

[00:37:10] Speaker 03:
I understand them to be making, not really disputing TSA's overall authorities to issue a screening requirement like this, absent some sort of statutory prohibition against it and the text does not support their reading whatsoever.

[00:37:25] Speaker 02:
What about the property part of that?

[00:37:27] Speaker 03:
Well, it's property that will be carried onto an airplane.

[00:37:30] Speaker 03:
That naturally might include the baggage that the traveling public has.

[00:37:36] Speaker 03:
I think the statute also notes mail, for example, that you expect is going to be carried on a plane.

[00:37:42] Speaker 03:
It's not anything that might go into an airport.

[00:37:44] Speaker 02:
Would it cover if an airport worker were to give something to a passenger after they get past the security checkpoint?

[00:37:53] Speaker 03:
Would it cover that?

[00:37:54] Speaker 03:
I'm not sure.

[00:37:54] Speaker 03:
And at the time that you're thinking, is there a screening obligation that property will be carried onto an airplane?

[00:38:01] Speaker 03:
because there's some possibility that through some avenue it may.

[00:38:04] Speaker 03:
And the other thing I would note is there's another screening, another provision in 44903H4A that also references screening of all individuals entering the secured area of an airport.

[00:38:18] Speaker 03:
That does not have the same requirement that the screening be performed by a federal government employee that 44901A has.

[00:38:26] Speaker 03:
And that just underscores that.

[00:38:29] Speaker 03:
Congress was not imposing the broader requirement of all screening that my friend are trying to read into.

[00:38:35] Speaker 03:
This is H4A.

[00:38:36] Speaker 03:
H4A.

[00:38:39] Speaker 03:
That talks about requiring screening or inspection of all individuals before entry into a secured area of an airport.

[00:38:45] Speaker 03:
That does not carry with it.

[00:38:47] Speaker 02:
Because that one doesn't specifically say it has to be TSA.

[00:38:50] Speaker 02:
Yes.

[00:38:50] Speaker 02:
So that one says TSA has to assure that it happens.

[00:38:53] Speaker 02:
That has no.

[00:38:54] Speaker 02:
TSA has to actually do it.

[00:38:54] Speaker 03:
That's right.

[00:38:55] Speaker 03:
There's no similar requirement to be performed by a federal government or a contractor under specified circumstances.

[00:39:01] Speaker 03:
The other point I just like to get on the statutory argument is just the baseline against which TSA was operating here.

[00:39:08] Speaker 03:
And that's a baseline in two senses.

[00:39:10] Speaker 03:
At first, as I understand my friends to acknowledge, TSA recognized

[00:39:16] Speaker 03:
aviation workers were not subject to a reasonable expectation of screening at the time it issued the national amendment.

[00:39:22] Speaker 03:
That's in part why one of the bases for the national amendment that there was a need to create this expectation that was not present given the status quo.

[00:39:33] Speaker 03:
And it also determined it was appropriate for airport operators to have that responsibility given a long history of shared responsibility in the area of airport security and addressing insider threats more generally.

[00:39:45] Speaker 03:
And that is a history that goes back to the 70s.

[00:39:48] Speaker 03:
You have regulations imposing access control responsibilities on airports.

[00:39:55] Speaker 03:
Since 2001, there are requirements that they have a security program that includes establishing a security area, taking steps to prevent unauthorized items going into the security area, or having unidentified persons enter the area.

[00:40:09] Speaker 03:
Since 2006, we talked about the security directives a little bit in the first part of the argument.

[00:40:14] Speaker 03:
There are specific requirements to inspect media and inspect whether unauthorized items are being brought into the area.

[00:40:23] Speaker 02:
So as I understand,

[00:40:23] Speaker 02:
The other side's argument on that, it's that yes, those existed.

[00:40:27] Speaker 02:
And yes, they continue to exist.

[00:40:29] Speaker 02:
But there's a continental divide between those things, which we can call inspection, and what we'll call screening, which is physical screening.

[00:40:38] Speaker 02:
I was going to say physical inspection, but I want to be careful to make sure that the continental divide is honored.

[00:40:43] Speaker 02:
That physical screening of airport workers.

[00:40:47] Speaker 02:
And as to those, you can tell from the 2016 and 2018 laws that those have to be conducted by TSA.

[00:40:53] Speaker 03:
So I don't think the 2016 statute helps them at all in indicating there's some sort of distinction between screening inspection.

[00:41:00] Speaker 03:
I mean, it actually directs TSA to expand the use of transportation security officers to perform physical inspection.

[00:41:08] Speaker 03:
It doesn't say if there's some sort of term of art screening versus inspection.

[00:41:12] Speaker 02:
But then they call it physical inspection.

[00:41:13] Speaker 02:
But the idea is that if you're talking about actually physically engaging with

[00:41:17] Speaker 02:
the person you're trying to inspect.

[00:41:20] Speaker 02:
That has to be done by, as the 2016 law says, a TSA representative.

[00:41:27] Speaker 03:
Well, so it directs TSA to expand the use of transportation security officers to perform those physical inspections.

[00:41:33] Speaker 03:
And TSA did respond to that through the Atlas program that conducts randomized screening.

[00:41:39] Speaker 03:
It's not able to get to the level that

[00:41:42] Speaker 03:
that TSA determined is required in the national amendment.

[00:41:44] Speaker 02:
Is the screening that's done under Atlas by TSA representatives, is that the kind of screening that would suffice under the national amendment or it conducted by airport operators?

[00:41:54] Speaker 03:
It's just different a little bit in that it's randomized.

[00:41:57] Speaker 03:
It is not designed.

[00:41:59] Speaker 02:
I mean the actual inspection itself.

[00:42:00] Speaker 03:
Yes, I mean it is physical screening in the same way that some airports at least were complying with earlier security directives through physical screening.

[00:42:09] Speaker 03:
We don't dispute that not every airport was doing that.

[00:42:12] Speaker 03:
In part it is both to require every airport to do physical screening and even for those airports that were previously doing physical screening to increase the

[00:42:19] Speaker 03:
the rate at which they were doing that.

[00:42:21] Speaker 03:
That's what the National Amendment does.

[00:42:23] Speaker 03:
But I think it does go to show that there was no sort of difference in kind and responsibilities between inspecting media and trying to determine if an employee is carrying unauthorized items into a secured area before the National Amendment and what the National Amendment is requiring now.

[00:42:37] Speaker 03:
It's building on existing responsibilities.

[00:42:40] Speaker 03:
And I think that goes in part to why TSA determined it was appropriate to have airport operators perform these responsibilities once it determined there's a need for that screening.

[00:42:50] Speaker 04:
The people who this rule requires to conduct physical screenings, are those people TSA representatives?

[00:43:03] Speaker 03:
I'm sorry, when the airport operators are conducting screening under the National Amendment.

[00:43:08] Speaker 04:
So the National Amendment says there needs to be screening, physical screening, right?

[00:43:14] Speaker 04:
Yes.

[00:43:15] Speaker 04:
And it requires

[00:43:18] Speaker 04:
the airports to provide people to conduct those screenings, correct?

[00:43:28] Speaker 04:
Yes.

[00:43:29] Speaker 04:
Are those people TSA representatives?

[00:43:33] Speaker 03:
I don't think so, I guess, in the sense they don't have any, they wouldn't have any employment or contractual relationship with TSA.

[00:43:38] Speaker 03:
I mean, they're performing a requirement imposed by TSA, but in the same sense that when you're complying with the security directives, you know, I don't think the airport employees who are, or contractors who are doing those sort of dues, I don't think you would necessarily be a TSA representative as a result.

[00:43:53] Speaker 04:
Can I share how I'm thinking through the, and tell me where I'm going awry?

[00:43:59] Speaker 04:
I think it would be pretty close case, maybe tip towards your favor, if all we had was what Congress did in the immediate wake of 9-11.

[00:44:08] Speaker 04:
They did seem to make pretty clear that they want airport security to be run by the federal government, by TSA.

[00:44:17] Speaker 04:
But they did issue some pretty broad statutory provisions that gives TSA some flexibility to impose some regulations in airports.

[00:44:26] Speaker 04:
So, you know, in that world, close case.

[00:44:31] Speaker 04:
But then we have the 2016 amendment, the 2016 statute, and it says the the TSA administrator or the administrator needs to subject airport workers to random physical security inspections conducted by TSA representatives.

[00:44:54] Speaker 04:
And so then to me, this goes from kind of a close case where there's not text directly on point to a case where there is express text directly on point saying these, and this is section 3407A3, these inspections need to be conducted by TSA representatives.

[00:45:15] Speaker 04:
Well, that seems like

[00:45:18] Speaker 04:
really uphill climb for you now.

[00:45:20] Speaker 04:
And then we can layer onto that, that if there's still some ambiguity, you may run into a major questions problem.

[00:45:31] Speaker 04:
You may run into a constitutional avoidance problem on the commandeering issue, if constitutional avoidance is your thing.

[00:45:37] Speaker 04:
You may run into a legislative history problem.

[00:45:39] Speaker 04:
Legislative history is your thing.

[00:45:42] Speaker 04:
But after all of that, it's just a lot

[00:45:46] Speaker 04:
A lot of text going against you and a lot of statutory interpretation tools, some I think stronger than others, going against you.

[00:46:01] Speaker 03:
There's a lot in that question, Your Honor.

[00:46:03] Speaker 03:
I mean, to start with the text, I don't read anything in the 2016 statute to say TSA representatives have to conduct all aviation worker screening.

[00:46:11] Speaker 03:
I mean, there's a direction to expand the use of TSOs to perform that screening.

[00:46:16] Speaker 03:
And the expanded use that we're talking about, that has to be performed by the transportation security officers.

[00:46:24] Speaker 03:
There's no dispute about that.

[00:46:25] Speaker 03:
But that is what TSA responded to with the Atlas program.

[00:46:29] Speaker 03:
And in 2018, Congress didn't indicate.

[00:46:31] Speaker 02:
But before you go to 2018, 2016, expanded use is one provision.

[00:46:35] Speaker 02:
That's in 3407B.

[00:46:38] Speaker 02:
But Judge Walker referred to 3407A3, the reference to conducted by TSA representatives.

[00:46:45] Speaker 02:
And what's your answer to that?

[00:46:46] Speaker 02:
Because I think you don't think that

[00:46:49] Speaker 02:
The conduct of physical inspections by airport workers are conducted by TSA representatives, which would potentially be an argument.

[00:46:56] Speaker 02:
You could say, well, they are still conducted by TSA representatives.

[00:46:59] Speaker 02:
It's just not TSA employees, but they're still TSA representatives.

[00:47:01] Speaker 02:
But for understandable reasons, you don't make that argument.

[00:47:05] Speaker 02:
So what is your argument with respect to that provision?

[00:47:07] Speaker 03:
Yeah, just that is not talking about the sort of all inspections of aviation workers have to be conducted by TSA representative.

[00:47:14] Speaker 03:
I think that's talking about the specific sort of randomized program that TSA did deploy in response to this statute.

[00:47:20] Speaker 02:
So Atlas is the answer to that?

[00:47:22] Speaker 02:
Yes.

[00:47:22] Speaker 02:
In other words, you think that that was complied with by Atlas because all this says is that TSA has to do something where it's conducting

[00:47:32] Speaker 02:
inspect conducting physical security inspections, its representatives conducting physical security inspections, and that's enough to comply with 3407A.

[00:47:41] Speaker 02:
And 3407A3 doesn't say that there can't be beyond that TSA imposed obligations on airport operators to do that.

[00:47:49] Speaker 03:
Yes, I mean, that's right.

[00:47:50] Speaker 03:
And I mean, just to get to the 2018 point, Congress didn't say, oh, you've totally misunderstood.

[00:47:57] Speaker 03:
We wanted you to be doing all aviation worker screening in 2018.

[00:48:00] Speaker 03:
It said,

[00:48:02] Speaker 03:
for the screening that you're doing in response to our direction in 2016, make sure it's compliant with this statute and subject to these requirements.

[00:48:10] Speaker 03:
I didn't even understand my friends to be arguing there was some broader requirement in A3 beyond the directive in C that TSA responded to with the Atlas program.

[00:48:22] Speaker 01:
So I guess I would like to be clear on TSA's position then on this, that where you have the Atlas program,

[00:48:33] Speaker 01:
but or not but or and TSA has determined that more is required for purposes of security.

[00:48:50] Speaker 01:
Then the question is,

[00:48:55] Speaker 01:
One way of looking at what Congress is suggesting is, well, if you do accept Bandit and you still determine that that's not enough for airport security, then

[00:49:14] Speaker 01:
I guess you have two options, your option, the one you chose is to say, well, we'll have the airport operators do it.

[00:49:22] Speaker 01:
Another is to go back to Congress and say, we need to double our staff.

[00:49:28] Speaker 01:
Did TSA ever do that?

[00:49:30] Speaker 01:
Or did the Department of Transportation or the administration ever ask for funding for this additional physical inspection that the Atlas program was not covering?

[00:49:45] Speaker 03:
I'm not aware of TSA making a request for additional funding.

[00:49:48] Speaker 03:
They did respond.

[00:49:50] Speaker 03:
In 2018, Congress issued this direction to conduct a study of the shared cost of performing additional screening.

[00:49:56] Speaker 03:
TSA did respond by submitting a report to Congress in response to that.

[00:50:04] Speaker 03:
And then 2020, I mean, it proposed this amendment that has airport operators perform that function.

[00:50:08] Speaker 03:
I don't think it has to in making that decision.

[00:50:12] Speaker 03:
There's no case they point to that they have to first have considered what is the cost, what are the additional funding we might get from Congress.

[00:50:19] Speaker 03:
I think they reasonably considered, do we have the resources in the Atlas program, given the various other functions it serves, and the fact that when you're deploying someone to the Atlas programs, they're not at the screening checkpoint, that there is a limitation of resources in that regard.

[00:50:39] Speaker 01:
Well, I wasn't getting into the reasonableness of the TSA's decision in that respect.

[00:50:48] Speaker 01:
I was simply asking whether or not the language of Congress could have been clearer perhaps by saying,

[00:51:01] Speaker 01:
whatever screening, physical screening is required shall be done by TSA and not the airport operators.

[00:51:09] Speaker 01:
You don't have that kind of language.

[00:51:12] Speaker 01:
But I guess what I'm troubled by is I do understand the notion that, look, these are airport operators.

[00:51:23] Speaker 01:
They're operating the airports.

[00:51:24] Speaker 01:
They ought to be responsible for their own employees wherever they are.

[00:51:29] Speaker 01:
All right?

[00:51:31] Speaker 01:
The federal government determines national security is potentially going to be adversely affected.

[00:51:38] Speaker 01:
Then the airports have to do something.

[00:51:40] Speaker 01:
And the federal government will do something too, but it's not going to do everything and it's not going to do everything with regard to.

[00:51:47] Speaker 01:
The airport employees.

[00:51:50] Speaker 01:
And I gather there's been a somewhat mixed response.

[00:51:55] Speaker 01:
Some airports are going ahead and doing it and others are in court saying you don't have authority to do this.

[00:52:03] Speaker 01:
And Congress is aware of this dispute.

[00:52:09] Speaker 01:
And it's aware that TSA thinks this additional physical inspection is necessary

[00:52:20] Speaker 01:
And yet it's also concerned about the cost being shifted, at least committee reports suggest it's concerned about the shifting of costs to airport operators.

[00:52:38] Speaker 01:
And I'm just concerned, I mean, are we in a situation where Congress imposes duties on federal agencies and then doesn't appropriate the funds that are necessary?

[00:52:50] Speaker 01:
But here the record seems to be that TSA has never taken the position.

[00:52:57] Speaker 01:
It wants to be the only screener.

[00:53:06] Speaker 01:
And your argument is there's nothing in the statutes that requires that, as I understand it.

[00:53:15] Speaker 03:
That's right.

[00:53:15] Speaker 03:
I mean, I guess I just I would answer by saying the status quo in terms of the statutes is that there is this requirement that federal government employees screen passengers and property that will be carried onto an airplane.

[00:53:28] Speaker 03:
There's not a sort of broader requirement that they be responsible for screening aviation workers.

[00:53:34] Speaker 03:
TSA has broad authority to regulate civil aviation.

[00:53:37] Speaker 03:
security, and they've determined this requirement is appropriate.

[00:53:40] Speaker 03:
Obviously, if Congress acts and the president signs a statute that either changes the terms of the screening requirements that federal government employees have to be responsible for or otherwise withdraws authority from TSA, that would certainly change the situation.

[00:53:57] Speaker 03:
But we don't have that here.

[00:53:58] Speaker 03:
So I think where the statutes do not impose the screening requirement on TSA, and it otherwise has broad authority to regulate in this area,

[00:54:06] Speaker 03:
This national amendment falls well within statutory authority.

[00:54:12] Speaker 02:
Can I ask a question about the statutes, whether the statutes impose the obligation on TSA?

[00:54:16] Speaker 02:
You mentioned this in your briefs, but I don't specifically recall it coming up yet at argument.

[00:54:21] Speaker 02:
On 2016, so 3407, we've talked about 3407A, but we also talked about 3407B.

[00:54:27] Speaker 02:
I don't know that we've talked about 3407C.

[00:54:29] Speaker 02:
So 3407C is entitled screening.

[00:54:35] Speaker 02:
And then it says in C1, the administrator shall conduct a review of airports that have implemented additional airport worker screening, additional airport worker screening or perimeter security to improve airport security.

[00:54:48] Speaker 02:
And then in C sub two, the administrator is supposed to take that information and come up with some recommendations for best practices.

[00:54:57] Speaker 02:
Does the fact that C1 refers to airports implementing additional airport worker screening

[00:55:04] Speaker 02:
does that indicate that Congress understood that airports were doing that?

[00:55:09] Speaker 02:
It's possible that TSA workers were actually carrying that out in partnership with airports as a practical matter.

[00:55:14] Speaker 02:
But as a legal matter, that wasn't being carried out by TSA workers.

[00:55:18] Speaker 02:
It was being carried out by airports.

[00:55:20] Speaker 02:
And the fact that Congress specifically said, hey, look at that.

[00:55:23] Speaker 02:
Figure out what's going on there and figure out what the best practices are, which obviously is forward-looking.

[00:55:27] Speaker 02:
You don't come up with best practices.

[00:55:29] Speaker 02:
unless you're thinking about implementing those practices in the future.

[00:55:32] Speaker 02:
Does that help support the proposition that in 2016, Congress didn't mean to say that screening from here on out has to be conducted by TSA workers?

[00:55:43] Speaker 02:
Yes, I mean, I think that's exactly right.

[00:55:45] Speaker 03:
We do think that that provision underscores that Congress is aware that airports were responsible or also had responsibilities for worker screening.

[00:55:54] Speaker 03:
In response to that, I think in part in response to that statute, TSA submitted information circulars as well that sort of fleshed out some of the obligations.

[00:56:05] Speaker 02:
And when it says, when it talks about additional airport worker screening,

[00:56:10] Speaker 02:
Is that screening of the variety that was then later imposed by the national amendment?

[00:56:16] Speaker 02:
Or is it not that kind of screening?

[00:56:19] Speaker 02:
It's some other kind of screening that we might.

[00:56:22] Speaker 02:
you know, call inspections or something less than that, just kind of a quick physical view without any kind of search.

[00:56:28] Speaker 03:
My understanding is that Congress was not drawing in any of these statutes a distinction between quick physical search inspection, quick visual inspection versus some other type of screening.

[00:56:38] Speaker 03:
It uses screening and inspection seemingly relatively interchangeably.

[00:56:42] Speaker 03:
So when it's talking about additional worker screening, I would think it's talking about the sort of physical screening that at least some airports, even before the national amendment, were undisputedly doing.

[00:56:52] Speaker 03:
I mean, this is reflected in the response to Massport's petition for reconsideration, for example.

[00:56:57] Speaker 03:
Before the national amendment, no dispute, it was doing physical screening of airports.

[00:57:03] Speaker 03:
And being airport operators were doing that.

[00:57:05] Speaker 03:
Airport operators, yes, of aviation workers.

[00:57:08] Speaker 03:
I think my friend takes the position that they were doing that voluntarily, but just as a matter of what was happening on the ground that Congress might have been referencing there, there was physical screening by airport operators at the time.

[00:57:19] Speaker 02:
Do you think the reference in C1, 3407C1 to additional airport worker screening that was conducted by airports, that would at least encompass that kind of screening that was going on?

[00:57:31] Speaker 02:
I mean, it may not be only referring to that.

[00:57:33] Speaker 02:
Yes.

[00:57:34] Speaker 02:
Yes.

[00:57:35] Speaker 03:
No, I think that does reflect that Congress was aware that there were.

[00:57:38] Speaker 03:
And it was suggesting, at least in best practice, it should be circulated to potentially increase that kind of screening on the part of airport operators.

[00:57:48] Speaker 02:
I have a question beyond this statutory part, but I want to stop this statutory part.

[00:57:52] Speaker 02:
No, I'm good on that.

[00:57:54] Speaker 02:
Can I ask a question about notice and comment?

[00:57:57] Speaker 02:
Just to shift to something that we haven't talked about yet.

[00:57:59] Speaker 02:
So on the notice and comment question,

[00:58:04] Speaker 02:
I know that the principal focus of your argument has been on this regulation, that you say,

[00:58:12] Speaker 02:
this amendment fits within.

[00:58:14] Speaker 02:
And that regulation, I agree, says that here's the kind of comment that we're talking about.

[00:58:19] Speaker 02:
It's this, I can't remember, 30 or 60 days at some period that's not quite up to what normal notice and comment would be under the APA.

[00:58:26] Speaker 02:
But your argument, I think, is that, look, there's a regulation that says that we can do this without doing that, without doing the APA.

[00:58:34] Speaker 02:
I guess my question is, how can a regulation do that?

[00:58:38] Speaker 02:
So who cares if a regulation says,

[00:58:41] Speaker 02:
We're not going to do notice and comment in X circumstances.

[00:58:45] Speaker 02:
And then, therefore, that means that the APA doesn't have to be complied with.

[00:58:51] Speaker 02:
I guess I don't quite follow the logic of that.

[00:58:53] Speaker 02:
And if I could just carry out this extra long question, even a little bit more long, with your patience.

[00:59:00] Speaker 02:
If part of your argument, and I understood the agency's response to the petition for reconsideration to

[00:59:06] Speaker 02:
Fold this into is that look, that regulation was out to present a notice and comment.

[00:59:10] Speaker 02:
And once we have a regulation that was adopted person was a notice and comment.

[00:59:13] Speaker 02:
Everybody knows what's coming.

[00:59:15] Speaker 02:
What can't be that an agency can say, Hey, I'm giving you notice and comment that from here on out, we're not going to do notice and comment.

[00:59:21] Speaker 02:
That can't be right either.

[00:59:22] Speaker 02:
And so I'm just wondering why, how does it, what does work is this regulation actually doing?

[00:59:26] Speaker 03:
So I have first principles kind of response to what I think the regulation might be doing.

[00:59:30] Speaker 03:
And then a second response on why it might be this is a very long standing regulation.

[00:59:36] Speaker 03:
But just so I went back to when this regulation was issued in 1978.

[00:59:40] Speaker 03:
The agency doesn't really explain that then FAA what it was doing.

[00:59:44] Speaker 03:
I think one way you might think about it is

[00:59:47] Speaker 03:
the entity subject to the requirement undisputedly has actual notice and an opportunity to comment.

[00:59:54] Speaker 03:
We're talking about airport security programs being changed.

[00:59:56] Speaker 03:
The airports, no dispute, all the airport operators got notice, they had the opportunity to comment.

[01:00:01] Speaker 03:
And so I mean, that is a specific sort of provision in 5 USC 553, where a rule is not imposing requirements on sort of the public at large, actual notice to the party subject to the requirements, an opportunity to comment that might be sufficient.

[01:00:16] Speaker 03:
I think that's my, you know.

[01:00:18] Speaker 04:
Did the individuals who will be screened have an opportunity to comment?

[01:00:24] Speaker 03:
The aviation workers?

[01:00:26] Speaker 03:
I'm not sure, I guess, to what degree representatives the aviation workers might also have been made aware of the comment.

[01:00:34] Speaker 03:
Certainly there's no indication here that any

[01:00:37] Speaker 03:
aviation worker wanted to comment.

[01:00:41] Speaker 03:
And was it deprived of it?

[01:00:42] Speaker 03:
I mean, just as kind of like a harmless error sort of analysis.

[01:00:45] Speaker 03:
Yes, but I mean, there's no suggestion that that is the sort of person who wanted to know.

[01:00:51] Speaker 04:
Would you think that the people being searched have an interest in the rules about them being searched?

[01:01:00] Speaker 03:
I mean, they may have an interest, but this court in epic

[01:01:04] Speaker 03:
said it wasn't enough just that a change in airport security program might have some effect on the traveling public who are subject to new screening procedures.

[01:01:11] Speaker 03:
There, I mean, the change is going to indicate, I mean, impose a real different direct requirement on the traveling public, given the nature of the screening technology at issue in that case.

[01:01:24] Speaker 03:
It certainly didn't suggest just the fact that you may then be subject to change.

[01:01:27] Speaker 04:
And the answer to this question may be yes, which would be good for you if it's yes.

[01:01:30] Speaker 04:
But was that program as expensive as this program more expensive?

[01:01:35] Speaker 03:
I am not sure what the sort of relative expense of.

[01:01:38] Speaker 04:
I think the client public might also have an interest in commenting on a rule that's going to impose $600 million of costs on the industry over 10 years because those costs will be passed on to the people who buy airline tickets.

[01:01:54] Speaker 03:
Well, that, again, sounds like if it is an interest, I mean, a very indirect interest, that is not at all what Epic suggested was sufficient.

[01:02:01] Speaker 03:
And that would also, again, probably apply.

[01:02:03] Speaker 03:
I mean, I guess different things cost different amounts.

[01:02:07] Speaker 03:
I'm not aware of any suggestion that you get notice and comment for an agency action of certain impact and not above.

[01:02:13] Speaker 03:
The second point on the notice and comment question I just run, this is a regulation issued originally by FA in 1978.

[01:02:22] Speaker 03:
And in the ATSA, with TSA being created, I mean, Congress did specifically

[01:02:27] Speaker 03:
direct the FDA regulations to continue in effect until TSA takes some action to withdraw them.

[01:02:35] Speaker 03:
So again, without any suggestion that it wanted to take some other approach with the amending of airport security programs, I think that again makes sense because at the very least, the security programs themselves tend to involve sensitive security information that

[01:02:54] Speaker 02:
I don't think I'm still not, and I'm probably just missing something basic.

[01:02:57] Speaker 02:
I don't think I'm still understanding the architecture of the argument, because put aside the second point, because I take it the second point is that Congress basically put its imprimatur on this regulation by saying it wants the regulations to continue to enforce.

[01:03:08] Speaker 02:
I don't think we know that it was talking about this particular regulation, right?

[01:03:11] Speaker 02:
That's right.

[01:03:12] Speaker 02:
So let's just say it was talking about the massive regulations of which this is one, and maybe we could expect Congress to have looked at every single one, but let's just put that to one side for a second.

[01:03:22] Speaker 02:
On the first point,

[01:03:23] Speaker 02:
is the upshot of your position that what this regulation shows is that the agency thought that the relevant parties would have enough of an ability to make their agency aware of their concerns if they fit within the fold of this regulation.

[01:03:43] Speaker 02:
And therefore, this regulation shows that this set of issues is just not the kind of set of issues that's subject to the APA's notice and comment regime.

[01:03:54] Speaker 02:
This is something different.

[01:03:56] Speaker 02:
It doesn't fit within the kinds of rules that are subject to that.

[01:04:00] Speaker 02:
If that's true, then I still don't understand what the regulations do, because this measure either does or doesn't constitute the kind of measure that's subject to notice and comment.

[01:04:10] Speaker 02:
The fact that there's a regulation that says it doesn't

[01:04:13] Speaker 02:
I mean, it shows that the agency might have thought about that.

[01:04:14] Speaker 02:
I mean, your brief could make that point, too.

[01:04:16] Speaker 02:
But the ultimate upshot of it would be that this is not the type of measure that's subject to notice and comment.

[01:04:21] Speaker 02:
But the existence of the regulation, I still don't understand how the existence of the regulation itself takes something outside of the purview of notice and comment.

[01:04:29] Speaker 03:
I'm not sure if the existence of the regulation is what does it.

[01:04:33] Speaker 03:
Just the regulation makes clear that if you're going to amend an airport security program or a group of airport security programs, as in this case, you have to provide notice to the airports and an opportunity to comment.

[01:04:45] Speaker 03:
And my point just on the APA is just

[01:04:47] Speaker 03:
5 USC 553 says that's sufficient.

[01:04:51] Speaker 03:
Actual notice to the party subject to the requirements is sufficient.

[01:04:55] Speaker 02:
And this court's decision in EPIC didn't take issue with that generally, except to the extent that- So then, oh, so it was your argument that the regulation shows that notice and comment actually was done?

[01:05:05] Speaker 03:
Yes.

[01:05:07] Speaker 03:
Or at least that the actual notice to the airport operator, which I believe the response also note, yes, the actual notice to the airport operator is an opportunity for them to comment.

[01:05:17] Speaker 02:
So the APA's notice and comment requirements were complied with.

[01:05:20] Speaker 02:
Not that they don't apply to this measure.

[01:05:22] Speaker 02:
It's that they actually were complied with in this situation.

[01:05:25] Speaker 02:
And the regulation shows that they were complied with.

[01:05:28] Speaker 03:
That's my understanding of how the regulation sort of fits with the requirements of C553.

[01:05:36] Speaker 03:
It is a long-standing regulation that that explanation is not reflected when it was initially issued in 78, but just when you do have actual notice to the airports where the one's actually responsible for the security programs, that fits within the sort of plain text of 5 U.S.C.

[01:05:52] Speaker 02:
553.

[01:05:53] Speaker 02:
And suppose we look at it and don't think that the APA's notice and comment requirements were complied with here.

[01:06:03] Speaker 02:
and that the regulation doesn't measure up to what the EPA expects would be done in notice and comment, then do you have anything else on notice and comment?

[01:06:12] Speaker 03:
I mean, this maybe should have been my first point, but I don't understand this argument to be at all wet.

[01:06:18] Speaker 03:
are pressing here, they don't take issue with the sort of general validity of the regulation under the APA.

[01:06:24] Speaker 03:
I think they're arguing that in light of this court's decision in EPIC, this falls within the situation in which we don't, that the procedures of this regulation are insufficient.

[01:06:36] Speaker 03:
And I don't think that argument works, just given the very particular features of the screening technology that this court highlighted in EPIC that made it think in that case, it was a direct

[01:06:47] Speaker 03:
effect on the traveling public at large, not just the airport operators, who there, too, had notice.

[01:06:52] Speaker 03:
I'm not sure they had an operator, but notice in that case.

[01:06:57] Speaker 03:
So I guess that would be my.

[01:07:00] Speaker 03:
I don't understand this argument to be one that they're pressing, the first principles APA argument.

[01:07:13] Speaker 04:
I read your reason for doing this.

[01:07:17] Speaker 04:
having the airports do the screening instead of you, that it's expensive and TSA doesn't have the money to do it absent taking money from other programs, TSA programs that are important.

[01:07:35] Speaker 04:
Is that the gist of it?

[01:07:39] Speaker 03:
I guess I would put it slightly differently.

[01:07:40] Speaker 03:
I think TSA,

[01:07:42] Speaker 03:
looked at whether it could do the sort of screening under its resource constraints and concluded it could not without sacrificing other objectives.

[01:07:51] Speaker 03:
I think the other thing I would add is it just also recognized this builds on existing responsibilities that airport operators

[01:07:57] Speaker 03:
have long held.

[01:08:00] Speaker 03:
We can find about what the specific requirements at various stages were.

[01:08:04] Speaker 03:
But it is true that since the 70s, airport operators have had responsibility for controlling access to particular areas of the airport.

[01:08:11] Speaker 03:
Since 2001, that's included establishing a security area and taking steps to prevent unauthorized entry.

[01:08:19] Speaker 03:
Since 2006, we have inspection

[01:08:21] Speaker 03:
requirements.

[01:08:23] Speaker 03:
Again, not every airport was complying with that by doing physical screening.

[01:08:26] Speaker 03:
Some were, but that's also part of TSA's reasoning that this builds on existing responsibilities in an area where there long has been a shared responsibility for ensuring airport security.

[01:08:38] Speaker 04:
I suspect you think that you believe this is not a major question.

[01:08:42] Speaker 04:
Do you want to say why you think it's not a major question?

[01:08:44] Speaker 03:
Sure, I mean, I would start to, I don't understand them beyond embracing it in the beginning of argument to be making a major questions argument.

[01:08:52] Speaker 03:
I think often in the major questions cases, it's something that an agency is doing that's kind of outside its normal wheelhouse.

[01:08:59] Speaker 03:
This is well within TSA's wheelhouse of imposing civil aviation requirements.

[01:09:05] Speaker 03:
The notion that just because it's

[01:09:08] Speaker 03:
For the major airports, it's $1.3 million average compliance costs per year.

[01:09:12] Speaker 03:
That makes it something that falls outside of TSA Civil Aviation Security.

[01:09:17] Speaker 04:
I don't think that's supported by... I thought the nationwide cost to airports, I thought was $300 million over five years.

[01:09:24] Speaker 04:
Isn't that right?

[01:09:25] Speaker 03:
I believe that may be the total.

[01:09:26] Speaker 03:
I mean, I think that breaks TSA broke that down to it's about 1.3 million for the airports, the biggest category by employment, 400,000 or so for the second category.

[01:09:36] Speaker 04:
And I think most of the cost comes either from opportunity costs or from

[01:09:42] Speaker 04:
payroll.

[01:09:43] Speaker 04:
And so if it's 300 million over five years, it would be 600 million over 10 years, right?

[01:09:49] Speaker 04:
It's not like the cost will go down after those five years.

[01:09:52] Speaker 04:
At least there's nothing in the record to suggest that.

[01:09:54] Speaker 03:
Yeah, I'm just candidly not sure of the answer.

[01:09:56] Speaker 03:
I mean, I think to some degree, it's like purchase of screening technology.

[01:10:00] Speaker 03:
But I do not know the breakdown between fixed and variable cost.

[01:10:04] Speaker 04:
I thought the 300 million may not include purchase of equipment that was under a different line item, but I could be wrong.

[01:10:12] Speaker 04:
Don't quote me.

[01:10:13] Speaker 04:
Assume, just for the sake of this question, that I think this is a major question.

[01:10:19] Speaker 04:
What's your argument for the statute has the clarity that a major question would require?

[01:10:25] Speaker 03:
I mean, I guess I would just maybe start with.

[01:10:27] Speaker 04:
Or do you think it does have the clarity that a major question would require?

[01:10:34] Speaker 03:
I think that, one, there is sort of a recognized broad authority that the statutes conferred.

[01:10:39] Speaker 03:
This court recognized it in Benachi for civil aviation security.

[01:10:43] Speaker 03:
The statute talks about specifically requiring screening of individuals entering security areas of an airport.

[01:10:48] Speaker 03:
That's 44903 4A.

[01:10:50] Speaker 03:
So I think- There's really nothing that speaks specifically to this rule.

[01:10:59] Speaker 03:
Well, this is a rule requiring screening of individuals entering the security area of an airport.

[01:11:04] Speaker 03:
I don't see how cost estimate of how much that screening requires takes that outside the statute.

[01:11:10] Speaker 03:
And especially just given recognized that Congress granted broad authority.

[01:11:16] Speaker 03:
This court has recognized TSA gets a deference on determinations about what is or is not necessary for civil aviation security.

[01:11:23] Speaker 04:
I think I have one last question.

[01:11:24] Speaker 04:
It's not about major questions.

[01:11:26] Speaker 04:
It's going back to the exclusive area agreements.

[01:11:31] Speaker 04:
The petitioner's brief says that those are a minuscule fraction of when compared to state-run state and local government-run and operated airports.

[01:11:48] Speaker 04:
Do you agree with that?

[01:11:50] Speaker 03:
I do not have the number.

[01:11:51] Speaker 03:
I don't think it's a negligible number of exclusive area agreements that are out there.

[01:11:57] Speaker 03:
It's undisputed that certain carriers do have those relationships to terminals, and then they would be responsible for these security functions.

[01:12:06] Speaker 03:
As far as I'm aware, I don't think the agency has specifically calculated the number of

[01:12:14] Speaker 03:
areas like that that would be subject to this requirement.

[01:12:18] Speaker 03:
I'm happy to answer any other question, but talk a little bit about commandeering.

[01:12:24] Speaker 02:
On commandeering, just to pick up on where we left off, because that was related to commandeering.

[01:12:29] Speaker 02:
So is there any legal problem with private entities running an airport?

[01:12:38] Speaker 02:
I take it the government

[01:12:40] Speaker 02:
position in the brief doesn't think so.

[01:12:43] Speaker 02:
And then as a practical matter, it looks like all airports of at least a reasonable size are conducted by governmental authorities of some nature.

[01:12:52] Speaker 02:
Why is that?

[01:12:54] Speaker 03:
So I mean, this is not in the record, and I don't want to put too much weight on it.

[01:12:56] Speaker 03:
My understanding is there's one airport among the three category subjects, the San Juan Airport, that is now privately operated.

[01:13:04] Speaker 03:
It's somewhat recently privatized.

[01:13:08] Speaker 03:
There may be practical sort of reasons why municipalities do this.

[01:13:13] Speaker 03:
I don't know, but there's certainly no legal requirements that it be a municipal or state entity that do this.

[01:13:21] Speaker 03:
I don't know.

[01:13:23] Speaker 03:
So it could just be the history of sort of airport operation in the United States versus other countries, but I candidly do not know the answer.

[01:13:32] Speaker 03:
At that point, I guess, on commentary I just want to make is that my friends recognize this is a very heavily regulated area of operating airports.

[01:13:41] Speaker 03:
And the implication of their position would be that at least as it relates to things you have to do vis-a-vis your workers or other workers that might enter the areas for which you're responsible, the federal government can impose affirmative requirements.

[01:13:57] Speaker 03:
really don't see how that could be right.

[01:13:59] Speaker 03:
I mean, there's an unchallenged requirement in this case that for workers that are going to have unescorted access to the security area of an airport, the airport conducts a background check on those workers.

[01:14:12] Speaker 03:
If that's a commandeering under Prince, I mean, Prince was also about background checks.

[01:14:15] Speaker 02:
There's also the security directives that require airport operators to do

[01:14:20] Speaker 02:
Not visual inspections.

[01:14:21] Speaker 03:
Yes, that is.

[01:14:23] Speaker 03:
That would also be common.

[01:14:24] Speaker 03:
I don't see how that's not covered by their theory as well.

[01:14:27] Speaker 03:
A number of undisputed.

[01:14:29] Speaker 04:
What if there was a federal law that required sheriff's offices to conduct physical screenings of sheriff's office employees who come into the office?

[01:14:38] Speaker 04:
Would that be commandeering?

[01:14:40] Speaker 03:
I think, I mean, you might have to ask what's, I guess, the congressional power to regulate the operation of sheriff's offices in a way that I think there's undisputedly federal power.

[01:14:48] Speaker 03:
take my friends to the other side to agree, there's extensive federal authority to regulate the operation of airports.

[01:14:55] Speaker 03:
I'm not sure in that case, you would have the same situation.

[01:14:58] Speaker 03:
I think if a state was operating critical infrastructure, for example, it could also be subject to particular requirements that it might not be subject to in its sheriff's offices more broadly.

[01:15:08] Speaker 04:
Do you think if there was, you know, interstate commerce clause power or something that was a grant of Congress to do this, that it wouldn't run into a common dealing problem?

[01:15:17] Speaker 04:
for Congress to say to a sheriff's office, you have to conduct physical searches of all sheriff's office employees.

[01:15:23] Speaker 03:
There may, I mean, there to be a question about whether Breckin talks about a core sovereign, a core of sovereign function that might be implicated in a case like that that is not implicated here.

[01:15:34] Speaker 04:
And that goes back somewhat to whether the airports are public or private in here, they're

[01:15:39] Speaker 04:
They're all public.

[01:15:40] Speaker 04:
And as I was saying with your friend, it's perfectly conceivable that an airport could be private and outside of the U.S., they sometimes are.

[01:15:50] Speaker 04:
But, you know, I'm somewhat intrigued by her point that the reason that they're all public is that the federal government has made it impossible for a private airport to be profitable.

[01:16:05] Speaker 04:
And so it may be that

[01:16:08] Speaker 04:
We should think of them in the US as state entities covered by commandeering doctrine because the federal government has basically made the states run them.

[01:16:30] Speaker 03:
Well, as I understand the argument, I guess it would be the number of requirements that an operator has to comply with in order to operate in the airport.

[01:16:37] Speaker 03:
Maybe only state and municipal entities as a matter of practice can do that.

[01:16:42] Speaker 03:
I don't think that's true.

[01:16:42] Speaker 03:
I mean, there is a federal effort to encourage privatization.

[01:16:47] Speaker 03:
There's no legal requirement that it be a state and municipal entity.

[01:16:50] Speaker 03:
But again, I just don't see how that argument works that the amount of regulation you have to comply with in this necessarily heavily regulated area means that as a state, you can then just opt out of the federal regulation if you're choosing to operate an airport.

[01:17:05] Speaker 04:
You can't opt out of lawful federal regulations.

[01:17:08] Speaker 04:
But a federal regulation that presses a state official into a federal law enforcement function is not a lawful regulation.

[01:17:20] Speaker 03:
Prince.

[01:17:21] Speaker 03:
Well, I just would disagree that this is pressing them into a federal law enforcement.

[01:17:25] Speaker 03:
They're not being asked to sort of enforce the law against the traveling public, private citizens.

[01:17:30] Speaker 03:
It's aviation workers, workers who have privilege access to the areas of an airport that the operator controls.

[01:17:37] Speaker 03:
So I just think that makes it a very different case from from Prince.

[01:17:39] Speaker 04:
And it doesn't matter that these people are being searched are not the airport's employees.

[01:17:45] Speaker 03:
I don't think so.

[01:17:46] Speaker 03:
And as sort of the colloquy earlier reflected, I mean, already they're subject to the airport operator deciding these access points are available for particular workers or not.

[01:17:56] Speaker 03:
There's some indications of the records.

[01:17:57] Speaker 03:
Some workers might have access to the security area.

[01:18:00] Speaker 03:
Some might have access a sterile area ID, which requires them to go through TSA checkpoints.

[01:18:06] Speaker 03:
Aviation workers are subject to a number of requirements, again, as part of this industry that has a number of safety regulations for good reasons.

[01:18:15] Speaker 02:
I know it's not in the record, and I appreciate you're saying that, but your understanding is that there is a private airport that's subject to the national amendment.

[01:18:25] Speaker 02:
That's my understanding.

[01:18:26] Speaker 02:
The San Juan International Airport is privately operated.

[01:18:30] Speaker 02:
I know that it's not in the record.

[01:18:32] Speaker 02:
OK.

[01:18:33] Speaker 02:
I have one other question.

[01:18:36] Speaker 02:
So on major questions, because I hadn't thought about this until argument, is the major question then would be whether

[01:18:43] Speaker 02:
in a situation in which there's already a requirement that airport operators conduct some inspections, visual inspections of airport workers, and there's already a requirement that TSA do screening of everybody other than airport workers who gets to the secured areas, because the main, I take it the overwhelming number of people who come through are passengers.

[01:19:07] Speaker 02:
And if we just did a breakdown of numbers of people,

[01:19:09] Speaker 02:
It's going to be all you passengers go through, probably in a vastly exceeding volume of so that then the major question would be the.

[01:19:20] Speaker 02:
Physical screening.

[01:19:22] Speaker 02:
Beyond visual inspections of airport workers.

[01:19:27] Speaker 02:
Whether that's the major question, whether that is something that.

[01:19:31] Speaker 02:
had to be spoken with with the requisite level of clarity that the major questions doctrine implicates.

[01:19:36] Speaker 02:
Is that the way you would understand it?

[01:19:38] Speaker 03:
I suppose so, yes.

[01:19:40] Speaker 03:
I do not understand my friends have articulated answers.

[01:19:42] Speaker 02:
And it's costly, because it's hundreds of millions of dollars.

[01:19:45] Speaker 03:
Yes.

[01:19:47] Speaker 02:
That's undisputed.

[01:19:49] Speaker 03:
That is under TSA did calculate the cost.

[01:19:52] Speaker 03:
Those are not our figures.

[01:19:55] Speaker 03:
Yeah, I would just underscore.

[01:19:56] Speaker 03:
I don't understand my friends who have sort of articulated any theory on this sort of thing.

[01:20:00] Speaker 04:
I appreciate that they didn't raise major questions.

[01:20:03] Speaker 04:
But if you think of it as a tool statutory interpretation, which a recent precedent of this court said, it's tools statutory interpretation.

[01:20:12] Speaker 04:
We treat it almost like the Expressio Unia's canon.

[01:20:17] Speaker 04:
then it really doesn't matter whether they raise you.

[01:20:21] Speaker 03:
I guess I would just say the fact that in sort of making arguments about why this TSA action exceeds the statutory authorities, it didn't occur to the regulated entities to say, this is the type of question that we're sure Congress would have

[01:20:39] Speaker 04:
I mean, it might suggest that it's not a major question.

[01:20:41] Speaker 04:
It might suggest that there's a merit to the argument that it's a major question.

[01:20:45] Speaker 04:
And I'm not saying it is a major question.

[01:20:47] Speaker 04:
But I think you would not say a party waves an espressio unis argument, right?

[01:20:55] Speaker 03:
I think you can wave specific statutory arguments and an argument that something is outside the agency's broad authority over civil aviation and security.

[01:21:05] Speaker 03:
I'm not sure that's the sort of argument that cannot be forfeited.

[01:21:09] Speaker 02:
I mean, you can't waive the obligation to look to the text first.

[01:21:13] Speaker 02:
That doesn't seem like the best picture.

[01:21:15] Speaker 02:
Sure.

[01:21:16] Speaker 03:
I would just make it clear.

[01:21:17] Speaker 03:
It at least highlights that absent this sort of dispute about what 44901 requires, I don't think there was any suggestion.

[01:21:25] Speaker 03:
This is not the sort of thing that's within TSA Civil Aviation Security responsibilities, otherwise.

[01:21:33] Speaker 02:
Thank you, counsel.

[01:21:35] Speaker ?:
Thank you.

[01:21:36] Speaker 02:
Ms.

[01:21:37] Speaker 02:
Allison will give you three minutes for rebuttal.

[01:21:43] Speaker 06:
Thank you.

[01:21:46] Speaker 06:
So first, I want to be crystal clear that before the National Amendment, airports were not required to do physical screening, period.

[01:21:59] Speaker 06:
The voluntary instances that my friend discussed

[01:22:03] Speaker 06:
were not the airports trying to comply with the security directive, which we talked about only required visual inspections.

[01:22:11] Speaker 06:
It was complying with informational circulars that TSA proposed, which recommend that airports can voluntarily assist TSA.

[01:22:23] Speaker 06:
When TSA is administering and supervising screening, they can voluntarily assist.

[01:22:29] Speaker 06:
Some did that.

[01:22:30] Speaker 06:
It's reflected in the petitions, but it was not required.

[01:22:33] Speaker 06:
And that's, Your Honor, there was a reference to Section 3407C1 in the 2018 Act.

[01:22:41] Speaker 06:
That's what it's referring to, understanding that some airports were doing that.

[01:22:44] Speaker 06:
And there were a couple of airports you saw on the record that had some local smuggling concerns, and they decided voluntarily to take over some aspect of the screening.

[01:22:55] Speaker 06:
Congress, recognizing that, said, you can look to some of those

[01:22:59] Speaker 06:
you know, measures and see what they're doing.

[01:23:01] Speaker 06:
Again, that's the cost benefit analysis that didn't happen.

[01:23:05] Speaker 06:
I also encourage you to look at the comments in the record.

[01:23:09] Speaker 06:
You can find them at 598 and 618 to 619, which really shows how the airport operators are trying to get their arms around, like what this continental shift

[01:23:22] Speaker 06:
as you said, is going to require.

[01:23:24] Speaker 06:
And it just underscores the difference in what was happening.

[01:23:28] Speaker 06:
The limited Atlas operations that my friend referred to do not meet the congressional directives in 2016 and 2018.

[01:23:36] Speaker 06:
Again, those sections that Judge Srinivasan referenced

[01:23:42] Speaker 06:
call out what the TSA needs to study in order to get, like, you know, 100% worker screening or something that approximates it.

[01:23:51] Speaker 06:
It needs to be this continuous, random, risk-based, thorough screening.

[01:23:56] Speaker 06:
None of that was happening.

[01:23:58] Speaker 06:
The only way that's happening now is under the national amendment, and it's all the airport operators that have to do it, not TSA-led, not TSA-conducted.

[01:24:07] Speaker 06:
And finally, a brief point on the APA didn't have a chance to talk about that.

[01:24:12] Speaker 06:
The TSA regulation, we have never conceded that the TSA regulation trumps the APA.

[01:24:20] Speaker 06:
The APA applies here because, again, this is a substantive change, a continental shift, but to what was happening before.

[01:24:28] Speaker 06:
And therefore, both not only airport operators, but airport workers and the general public should have had an opportunity to comment.

[01:24:36] Speaker 06:
The airport workers have a privacy interest here, but the general public, let's not understate the interest of the general public.

[01:24:47] Speaker 06:
The general public's interest in knowing about what TSA is doing to carry out its screening obligations or not doing in this case is significant, especially considering that TSA was created

[01:25:01] Speaker 06:
after a catastrophe that had massive impacts on the general public.

[01:25:06] Speaker 06:
That is something the general public should be commenting on.

[01:25:09] Speaker 04:
I think you can have one more question.

[01:25:13] Speaker 04:
On your very last point, it seems like the public might actually have an interest in not knowing too much about how security works at an airport because the more the public knows, the more the terrorists know.

[01:25:26] Speaker 06:
Well, we know that that's not the case actually, because you can look at the administrative record in this case.

[01:25:32] Speaker 06:
And almost none of it is SSI.

[01:25:35] Speaker 06:
There's very little marked as SSI.

[01:25:37] Speaker 06:
All of the information about what the national amendment is going to require, what airports are doing, what they were doing before now, it's not marked as SSI.

[01:25:46] Speaker 06:
And so I think, assuming that people might want to be informed about how the federal government is carrying out its activities and how TSA that was created to do this thing is choosing not to do it, I think the public has an opportunity to comment on that.

[01:26:02] Speaker 01:
Well, Congress hadn't always agreed with you on that regard, where national security is involved.

[01:26:15] Speaker 06:
Again, here, I think there's quite a bit in the record that TSA acknowledges is not... I know, but there may not be the type of information that could be useful in terms of

[01:26:34] Speaker 01:
I'm thinking in a lot of other disclosure statutes, law enforcement, procedures, et cetera.

[01:26:42] Speaker 01:
So you just view that actual notice to the regulated entity is necessarily not in compliance with the APA.

[01:26:59] Speaker 06:
Right.

[01:26:59] Speaker 06:
It's not in compliance here because of the nature of the change.

[01:27:03] Speaker 06:
It's a substantive change to the obligations of the airport operator.

[01:27:07] Speaker 01:
And I just need to be clear about, even though cases where the APA applies, actual notice suffices.

[01:27:22] Speaker 06:
Well, with respect to the airport operators, I would respectfully, I would disagree that where there's a substantive change to a regulated entities obligations that the APA allows a agency to circumvent that via regulation.

[01:27:43] Speaker 06:
But I think there's a second point is that there are other interests and this is another

[01:27:51] Speaker 06:
point that you evaluate under the APA, but there are other interests, particularly public interests that are in play.

[01:27:59] Speaker 06:
And so the public should have the opportunity to comment.

[01:28:03] Speaker 06:
And that, again, answering your first question, Judge Rogers, is there's not a lot the public needs to know here to comment.

[01:28:12] Speaker 06:
They need to know that

[01:28:14] Speaker 06:
all of the individuals that are working here.

[01:28:16] Speaker 01:
No, but I'm saying the law under the APA is that the agency has to disclose what it's relying on.

[01:28:23] Speaker 01:
That's all I'm getting at.

[01:28:24] Speaker 01:
I'm not going to pursue this.

[01:28:27] Speaker 01:
I made a point that I just wanted you to consider.

[01:28:31] Speaker 06:
Okay.

[01:28:31] Speaker 06:
Okay.

[01:28:32] Speaker 06:
So I'll finish with that, that here there is enough here for the public to be able to evaluate that concern.

[01:28:39] Speaker 02:
So I have one narrow question on commandeering.

[01:28:42] Speaker 02:
So

[01:28:42] Speaker 02:
What does your commandeering argument also apply to the requirement under the security directives to conduct visual inspections?

[01:28:52] Speaker 06:
Well, no, we have.

[01:28:54] Speaker 06:
We've never raised a commandeering argument because the logic of your commandeering argument cover that too.

[01:28:59] Speaker 02:
And if not, why not?

[01:29:00] Speaker 06:
No, because I think the costs of essentially ensuring that the access to the physical structure of the airport is only

[01:29:11] Speaker 06:
You know, given to people that have badges to people that are allowed to be there does not impose the kind of costs and absolutely does not impose the kind of liability that these physical search and hearing was about just about requiring.

[01:29:27] Speaker 02:
that a state or local entity to carry out a federal sovereign, like a governmental function that just commands the state to do that.

[01:29:36] Speaker 02:
Why isn't the same thing happening with the visual inspections?

[01:29:39] Speaker 02:
I totally get that the physical screening is a lot more expensive and liability potentially is significantly greater if the obligations imposed upon the airport operators.

[01:29:50] Speaker 02:
But why isn't the imposition of an

[01:29:53] Speaker 06:
an obligation on airport operators to do the visual inspections also commandeering well first i don't want to skip over that the the liability and cost issues because under prince and under murphy those are fundamental principles under the commandeering provision right this idea that the costs are going to be shifted and

[01:30:13] Speaker 06:
I think an even more concern here that the blame and the liability will be shifted are fundamental to commandeering.

[01:30:21] Speaker 02:
And you think there's no danger of blame shifting or there's no cost associated with visual inspections and making sure that the prohibited matter doesn't get back into the security.

[01:30:31] Speaker 06:
Whatever cost and liability is associated with that cannot even approach the cost and liability associated with screening workers.

[01:30:43] Speaker 02:
Is it enough of a cost and liability that it gives rise to a commandeering challenge?

[01:30:46] Speaker 02:
I know that you haven't raised that commandeering challenge, and you may think, yes, there's a commandeering challenge, but we just don't care about it enough to reason, which is a totally coherent decision.

[01:30:54] Speaker 06:
I think because the costs are

[01:30:59] Speaker 06:
have never approached what we're talking about and the liability in particular, that they've never chosen to raise that challenge.

[01:31:06] Speaker 02:
And then you think the commandeering challenge is, there wouldn't be a commandeering challenge with respect to this?

[01:31:10] Speaker 06:
Well, your point that they're directing the airports to the extent it's impacting the rights of third parties, right?

[01:31:18] Speaker 06:
That then there is a commandeering argument.

[01:31:21] Speaker 06:
But the way that this impacts the rights of third parties and the way that it raises these liability and cost concerns

[01:31:28] Speaker 06:
are, again, as you've said, Judge Trini Boston, the continental shift that takes this case to a different level.

[01:31:37] Speaker 06:
And that's why we're challenging it today.

[01:31:40] Speaker 02:
Thank you, counsel.

[01:31:41] Speaker 02:
Thank you to both counsel.

[01:31:42] Speaker 02:
We'll take this case under sufficient.

[01:31:43] Speaker 06:
Thank you.