Screener Suit Allowed to Go Forward
A federal District Court judge in Los Angeles has issued a preliminary ruling siding with workers who contend that a post-Sept. 11 federal law barring noncitizens from working as airport screeners is unconstitutional.
Judge Robert M. Takasugi, in a ruling made public Wednesday, denied a motion filed by Justice Department lawyers asking that the suit, filed in January by the American Civil Liberties Union, be dismissed.
Another hearing in the case is scheduled for Friday, and ACLU attorney Mark Rosenbaum said he hopes that Takasugi will issue a formal injunction striking down the law at Southern California airports.
“This ruling demonstrates the United States can have a war on terrorism without making our civil liberties the first casualty,” Rosenbaum said Wednesday.
Justice Department lawyer Elizabeth J. Shapiro and a Department of Transportation spokesman had no immediate comment.
The lawsuit was filed in January on behalf of nine screeners who work at Los Angeles and San Francisco international airports. Rosenbaum and his ACLU co-counsel, Ben Wizner, contend that the citizenship requirement enacted by Congress after the East Coast terror attacks is “irrational” and could weaken airport security by removing thousands of experienced employees from the system.
The Service Employees International Union, which represents 2,000 airport screeners, some of whom have already lost their jobs, is a party to the suit.
When the legal action was filed, about 25% of the 28,000 pre-boarding screeners at the nation’s airports were not citizens, but were permanent residents. At some airports, the percentage of noncitizens was far higher -- about 40% at LAX and more than 50% in San Francisco, Sacramento, Miami and at Washington’s Dulles airport.
The suit also emphasized that there was no citizenship requirement for airline pilots, flight attendants, baggage handlers or National Guard troops stationed at airports to enhance security after the Sept. 11 terrorist attacks.
In his ruling, Takasugi said that “improving aviation security is a compelling governmental interest.” However, he said, at this stage of the case “this court cannot conclude that this categorical exclusion of all noncitizens from employment as screeners is the least restrictive means to further such governmental interest.” The judge was referring to the legal standard the government must meet to treat noncitizens differently.
Among the plaintiffs who have worked as screeners at LAX is Jeimy Gebin, 22, of Hawthorne, a permanent resident who served from 1997 to 2000 in the Army.
She fled the civil war in El Salvador with her family when she was 5 and received her green card five years ago, according to the suit.
She and the other plaintiffs became ineligible to apply for continuing employment as screeners because of the new law.
The statute enacted a year ago has spurred considerable controversy. Sen. Dianne Feinstein (D-Calif.) has pushed an amendment to an airport security bill, sponsored by Sens. Ernest F. Hollings (D-S.C.) and John McCain (R-Ariz.), that would ease the citizenship requirement for screener positions. The amendment is now part of the airport bill, which has cleared the Senate Commerce Committee and is pending a vote by the full Senate, according to a Feinstein aide.
In legal papers seeking to have the case dismissed, Justice Department attorney Shapiro contended that the citizenship requirement of the Aviation and Transportation Security Act had at least three legitimate governmental purposes: improving aviation security; restoring the public’s confidence in the nation’s air transportation system; and encouraging permanent allegiance to the United States.
ACLU attorneys sharply disagreed and said that “restored public confidence” is not a legitimate ground for government discrimination on the basis that someone is not a citizen.
In his ruling, Takasugi analyzed the facts of the case in light of earlier rulings related to noncitizens.
Since a 1971 Supreme Court decision, he said, “the general rule has been that government action must meet ‘strict scrutiny’ to constitutionally justify the exclusion of aliens.”
He said there are two exceptions. One is called “the governmental function exception,” and the other comes into play when special deference must be accorded the political branches of the U.S. government in the area of immigration and naturalization.
Prior decisions have held that the first exception applied to laws restricting such jobs as police officer or schoolteacher to U.S. citizens. Unlike such workers, Takasugi said, airport screeners do not “perform a fundamental obligation of government to its constituency.” Rather, he said, an airport screener “is a more common occupation of the community,” and should not fall into the same category.
As to the second exception, Takasugi said that prohibiting all noncitizens -- including resident aliens -- from holding jobs as screeners “cannot be construed as an exercise of Congress’ authority in the area of immigration and naturalization.”
Normally, he said, the justification for giving elected federal officials deference in such instances is that “decisions in these matters may implicate our relations with foreign powers.”
However, Takasugi, who was appointed by President Carter, emphasized that “it cannot be said that the exclusion of United States nationals is an exercise of immigration or naturalization authority. It could have no implication in our relations with foreign powers, nor could it be justified as encouraging aliens to naturalize.”
Because neither exception applies, the blanket exclusion of all noncitizens from airport screening jobs can pass constitutional muster “only if it is a narrowly tailored measure that furthers compelling governmental interests,” the judge ruled, saying the government has not demonstrated that at this point.
