Supreme Court Requested to Address Challenge Against ‘No-Fly List’
Air travelers challenging the terrorist watchlist program argue that it was never explicitly authorized by Congress.
This week, four individuals contesting the federal government’s airport security policies requested the Supreme Court to examine the Department of Homeland Security’s terrorist watchlists.
CAIR is representing the petitioners: Adis Kovac, Bashar Aljame, Abraham Sbyti, and Fadumo Warsame, all of whom are U.S. citizens and adhere to Islam.
The lead respondent is Christopher Wray, who is being sued in his official capacity as the director of the Federal Bureau of Investigation (FBI). Wray announced that he will resign on Jan. 20, 2025, coinciding with President-elect Donald Trump’s inauguration, with Trump having nominated Kash Patel as his successor.
The case centers on the Terrorist Screening Database, managed by the Terrorist Screening Center at the FBI. The federal government argues that this database is essential for safeguarding the United States from terrorist threats.
The database generates two sub-lists: the No-Fly List, which prohibits individuals from boarding flights, and the Selectee List, which mandates additional security screening before a person is allowed to fly.
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Three of the petitioners—Aljame, Sbyti, and Warsame—reported being placed on the Selectee List due to frequent extra screenings, prolonged interrogations, and searches. The fourth petitioner, Kovac, stated he was listed on the No-Fly List after being barred from boarding a flight, as indicated in court documents.
The petitioners utilized the DHS Traveler Redress Inquiry Program, which allows individuals believing they have been erroneously subjected to enhanced screening or denied boarding to ask officials for a review of their status with the consideration of new information.
The federal government does not confirm or deny anyone’s presence on the Selectee List, but those on the No-Fly List are notified of their status and may challenge it in court.
DHS issued “no-confirm-no-deny” letters to the three petitioners regarding their status on the Selectee List and informed Kovac about his inclusion on the No-Fly List.
The four individuals filed a lawsuit against various federal agencies, seeking removal from the lists.
They contended that Congress did not explicitly authorize the creation of the watchlists, which they allege violates the Supreme Court’s major questions doctrine. This doctrine holds that courts should presume Congress does not delegate critical policy questions to federal agencies.
A federal district court in Texas determined in 2023 that “the current patchwork of applicable caselaw necessitates courts to employ a two-pronged analysis” for assessing major-questions claims, according to the petition.
Under this doctrine, a court must first ascertain if “the power an agency asserts is of vast economic and political significance.” Second, the agency must “indicate a clear congressional authorization that allows its actions.”
The court found the major questions doctrine relevant in this case due to over a million individuals being on the list, with an “unlimited number of people” potentially added, resulting in significant “liberty intrusions emanating from the watchlist.”
However, the court ruled against the petitioners, asserting that “Congress has repeatedly ratified” the establishment of the watchlists.
The petition requested the Supreme Court to consider the case to uphold the major questions doctrine, which the circuit court did not adjudicate.
“If the Government intends to manage a sprawling, multi-agency program that drastically affects the lives of innocent Americans without a hearing or proof of any wrongdoing, the minimum requirement should be that Congress legislates this program. Yet, this has not occurred.”
The Epoch Times reached out to the U.S. Department of Justice, which represents Wray, for a comment but did not receive a response by the time of publication.
