Delta Airlines CEO Ed Bastian asked Attorney General Merrick Garland this month to support implementing a national “no-fly” list for passengers convicted of disruptive onboard conduct. In his letter, Bastian said that “the rate of incidents with unruly passengers on Delta has increased nearly 100 percent since 2019.” Bastian’s request didn’t sit well with eight Republican senators, who wrote to Garland on Feb. 14 to express their opposition. Those senators are right to oppose the list, but they’re opposing it for all the wrong reasons.
Passenger misconduct has become a serious problem, not only for airline crews but also for passengers.
There’s no question that passenger misconduct has become a serious problem, not just for Delta and not only for airline crews, but also for passengers. The Federal Aviation Administration reports that it referred 80 of the most disruptive passengers to the FBI for potential federal prosecution. In 2022 alone, there have already been 400 reports of unruly passengers. The vast majority of these cases relate to passengers not complying with onboard mask requirements imposed by federal authorities.
It's those passengers’ objections to masks that have the eight Republican senators advocating for them and balking at a possible ban on the criminally uncooperative flyers. In their letter to Garland, they write, “Creating a federal ‘no-fly’ list for unruly passengers who are skeptical of this mandate would seemingly equate them to terrorists who seek to actively take the lives of Americans and perpetrate attacks on the homeland.”
Being “skeptical” about masks is one thing; assaulting flight attendants and fellow passengers takes skepticism to another level. But at least the senators said the quiet part out loud: Their stance is based on their alignment with those who either reject science or choose to interpret it for themselves and who seem not to care for fellow passengers who are elderly, immunocompromised or very young. Basing their opposition to a no-fly list on the fact that they, too, are skeptical doesn’t strengthen the senators’ position. It destroys it.
Unlike that of Sens. Cynthia Lummis of Wyoming, Mike Lee of Utah, James Lankford of Oklahoma, Marco Rubio of Florida, Kevin Cramer of North Dakota, Ted Cruz of Texas, John Hoeven of North Dakota and Rick Scott of Florida, my opposition to a new no-fly list doesn’t arise out of empathy for passengers who punch their way to prison. Rather, I’m concerned precisely because partisan lawmakers think it’s OK to tell the attorney general not to regulate reprehensible conduct when the conduct is committed by their allies. If the power players in any party will lobby the Justice Department not to create an enforcement list that includes their allies, then what’s stopping them — when they’re in power — from creating such a list and putting their enemies on it? The two scenarios are only a hairsbreadth apart on the abuse-of-power spectrum.
If we’ve learned anything from history — long-term and short-term — it’s that power corrupts. And the powers to restrict — or not restrict — the free movements of U.S. citizens seem particularly suited for abuse. During the four years of the Trump administration, laws, norms and regulations were ignored, gaps in the law were exploited, and the truth was twisted and torn for personal and political gain. If a domestic, protest-based no-fly list had existed when President Donald Trump tweeted (without any recognized legal authority) on May 31, 2020, “The United States of America will be designating ANTIFA as a Terrorist Organization,” rest assured he would have tried to place whomever he could have on that list. In fact, the only reason Trump couldn’t declare “antifa” adherents to be domestic terrorists is there is no process in America to designate a domestic terrorist group.
When contemplating new restrictive mechanisms, we should first ask whether existing measures are inadequate.
It's tempting to think that the criteria for such a list could be carefully written to prevent abuse. For example, the Delta CEO’s letter to Garland suggests that the list include people “convicted of an onboard disruption.” That sounds solid, right? But convicted of what kind of disruption? A verbal threat? A refusal to wear a mask that delays a flight? (If so, delays it for how long?) Would the list include those convicted of misdemeanor assaults or just felony assaults? Even if it is carefully crafted at its inception, couldn’t a new Congress rewrite it? Wouldn’t the “wrong” attorney general be able to influence who gets put on the list? Who would be the final arbiter of which people are included? Could a corrupt president declare a certain group of people a security threat and get all its members put on the list?
That would never happen, right?
When contemplating new restrictive mechanisms that could curtail civil liberties and be abused by leaders prone to authoritarianism, we should first ask whether existing measures are inadequate. Passengers who disrupt flights are being arrested and prosecuted — when appropriate — in federal court. As Bastian, Delta’s CEO, notes in his letter to Garland, airlines have created their own internal lists of passengers permanently banned from flying on those airlines. If they choose to, the airlines can circulate their lists to other airlines, which would be free to ban the same people. Judges might, as a condition of probation or parole, include a travel prohibition for a convicted disruptive passenger. I can find no evidence of a trend in multiple repeat offenders’ disrupting flights.
The Centers for Disease Control and Prevention will soon be reconsidering its mask guidelines. While new guidelines might not change the existing mandate for air travelers, at some point — it’s hoped soon — the Covid-19 pandemic may weaken to the point where wearing a mask is a suggestion and not a mandate. When that happens, we won’t want to look back in regret at having created a permanent and powerful tool that could be wielded as a hammer. We’ve already got the tools to deal with irate passengers. Creating a government list to deal with them just doesn’t fly.
