23 April Basic Hypothetical

1. Suppose the Under Secretary for TSA has promulgated the following rule, after allowing opportunity for notice and comment under § 553 of the APA:

"No one shall take a notebook, laptop, or other portable computer through any airport security checkpoint. Any person violating this rule shall be subject to the maximum civil and criminal penalities authorized by law."

The preamble to this rule recites at length data supporting the risk that a bomb could be concealed in a small computer and could evade detection at the checkpoint. Part of the data indicates that only the most highly skilled 10% of the scanners can detect explosive material concealed in a small computer based on the xray image. The preamble also cites data supporting the conclusion that the economic impact of the rule will be slight.

2. Suppose the TSA files a complaint against law student Patrick Kennedy for violating this rule. The TSA statute provides that any alleged violation of TSA rules shall be determined on the record after opportunity for agency hearing. The procedural rules of the TSA provide that an ALJ shall preside at enforcement hearings and prepare a "recommended decision" for consideration by the Under Secretary or his delegate.

A full-blown formal adjudicatory hearing occurs before an ALJ, with Mr. Kennedy's counsel allowed to introduce every piece of evidence, to make every argument, and to conduct all the cross examination he wished. At the conclusion of the hearing, the ALJ writes a recommended decision, finding Mr. Kennedy not liable for violating the no-computer rule. Part of the recommended decision says, "The only signficant evidence presented against Mr. Kennedy was testimony by Ted Ebersole, a law school classmate and former friend of Mr. Kennedy's. Mr. Ebersole testified that Mr. Kennedy bragged to him that he had managed to sneak a Dell laptop computer through the O'Hare checkpoint 'in violation of this ridiculous new rule.' Superficially, Mr. Ebersole's testimony was credible, but I noticed that he was blinking rapidly while he testified. In my experience, a witness who blinks rapidly while testifying is lying. So I discount Mr. Ebersole's testimony and find that no substantial evidence supports a finding that Mr. Kennedy violated the rule."

The Under Secretary reaches the opposite conclusion, based on Mr. Ebersole's testimony, specifically rejecting the ALJ's "rapid-blinking" rule of thumb, and based on Mr. Kennedy's failure to testify denying the rule violation..

On judicial review, what arguments against enforcement of the TSA order? What arguments in support?