Democrats in the United States Senate blocked another attempt by Republicans to fund the Department of Homeland Security (DHS) on Thursday, as the partial government shutdown entered its fourth week. One of the most apparent consequences of the blockade is the out-of-control TSA wait lines at airports across the country.

As the issue is elevated by people like Senators Marsha Blackburn, R-Tenn, and Dave McCormick, R-Pa., the argument inevitably reemerges that the Transportation Security Administration (TSA) is unconstitutional and should not exist anyway.

The Transportation Security Administration was established in the aftermath of the September 11, 2001, terrorist attacks, which killed nearly 3,000 people when hijackers seized four commercial airliners and used them as weapons against targets in New York, Pennsylvania, and Virginia.

Prior to 9/11, airport passenger screening in the United States was handled by private contractors hired by airlines. Standards were minimal: passengers could carry small pocket knives aboard, no boarding pass or ID was required to reach gates in many cases, and security was often inconsistent across airports. 

The attacks exposed these vulnerabilities, as the hijackers exploited lax procedures to board flights with box cutters and knives.

Mohamed Atta and Abdul Aziz al-Omari, two of the 9/11 hijackers, passed easily through security at the Portland International Jetport in Maine, boarded without challenge, a commuter flight to Boston Logan International Airport, and then — again without serious screening — boarded L.A. bound American Airlines Flight 11. That flight would be hijacked by the jihadist pair and crashed into the World Trade Center.

Legislation creating the TSA as a federal agency 

In direct response, Congress passed the Aviation and Transportation Security Act (ATSA), signed into law by President George W. Bush on November 19, 2001. This legislation created the TSA as a federal agency (initially under the Department of Transportation, later moved to the Department of Homeland Security in 2003) to oversee security across transportation modes, with a primary focus on aviation. 

Key mandates included federalizing passenger and baggage screening, requiring 100% checked baggage screening for explosives, expanding the Federal Air Marshal Service, and reinforcing cockpit doors.

Business Insider reported that "Some 50,000 TSA agents went without their first paycheck this week as the Department of Homeland Security, which oversees the TSA, remains unfunded due to a congressional battle over its immigration enforcement policies." The outlet also reported that since the defunding of TSA, thousands of travelers in the US are getting stuck in security lines that are taking up to three hours to clear in some airports. Newark's Liberty International is reporting a wait time of between 40 and 60 minutes to clear. 

Constitutional arguments against the TSA under Fourth Amendment

Critics argue that the TSA violates core constitutional principles, particularly the Fourth Amendment, which protects against unreasonable searches and seizures. Airport screenings involve pat-downs, full-body scanners, and bag inspections—procedures many view as invasive without individualized suspicion or probable cause.

Proponents of eliminating the TSA contend that these measures constitute unreasonable searches. Full-body scanners (advanced imaging technology) can reveal detailed body images, raising privacy concerns, while enhanced pat-downs involve physical contact many describe as intrusive. 

Some legal challenges have focused on whether these practices exceed permissible bounds, even with exceptions like administrative searches for public safety. Courts have generally upheld TSA screenings under the "special needs" or administrative search doctrine, viewing them as limited intrusions justified by a compelling governmental interest in preventing aviation terrorism. For instance, a 2011 court ruling by the U.S. Court of Appeals for the District of Columbia Circuit found full-body scanners constitutional, although the court criticized the lack of public comment allowed prior to implementation. 

However, opponents maintain that consent to screening (as a condition of flying) is coercive, effectively forcing travelers to surrender Fourth Amendment rights to exercise a common mode of travel. Critics also argue the TSA represents federal overreach, lacking explicit constitutional authorization for a massive bureaucracy conducting routine suspicionless searches on millions of citizens daily. Some libertarian and conservative voices frame it as an unconstitutional expansion of government power post-9/11, infringing on personal liberty and privacy without sufficient justification.

Recent proposals, such as the Abolish the TSA Act introduced in 2025 by Senators Mike Lee, R-Utah, and Tommy Tuberville, R-Ala., call for dissolving the agency and shifting to privatized screening under FAA oversight, arguing it would reduce intrusions and improve efficiency. The bill has been referred to the Committee on Commerce, Science, and Transportation, where it currently languishes.

Weighing Safety and Security Concerns

While constitutional critiques are compelling, the TSA's defenders emphasize its role in aviation safety. The agency screens millions daily — in 2024, more than 904 million passengers and 494 million checked bags —  intercepting threats like firearms (over 6,000 discovered in carry-ons in recent years).

No major U.S. commercial hijacking has succeeded since 9/11, a record often credited to layered security (including intelligence, air marshals, reinforced doors, and checkpoints). Public confidence remains high, with surveys showing strong support for measures like identity verification.

And yet, effectiveness is debated. Covert testing by the Department of Homeland Security has repeatedly shown high failure rates as high as 80-95% in detecting mock threats like weapons or explosives in undercover audits, though exact recent figures are sometimes classified or improved upon.

Government Accountability Office reports have highlighted persistent vulnerabilities, such as unaddressed issues from covert tests and technology degradation over time.

Cost-benefit analyses suggest some measures may not justify expenses given low attack probabilities, questioning whether current levels represent optimal security or "security theater."

Privatization advocates point to the TSA's Screening Partnership Program, where some airports use private contractors under TSA standards, as evidence that alternatives could maintain security while reducing bureaucracy and delays. While post-9/11 reforms addressed real threats and contributed to two decades without major hijackings, persistent testing failures, high costs, and privacy intrusions fuel arguments for abolition or reform. 

Amanda Head is White House Correspondent for Just The News. You can follow her here.