Law Professor David Post gets a bit unhinged over airport priority security lines. (Line breaks added for readaibility.)

Traveling down here from DC, I had my usual angry reaction, when standing on the TSA security checkpoint line at Reagan-National airport, at what has become the norm: special treatment for First Class and other “priority” travelers. You don’t have to be an Occupy Wall Street-er to find this entirely outrageous.

I get it that money can buy many things, and that that’s not an inherently bad thing – but one thing it should not be able to buy is improved government service. We have a word for that: ”bribery.” If passengers could pass $100 bill to the TSA agent on duty in order to get moved to the fast lane, we’d all condemn that heartily. Why it’s somehow OK when air passengers pay the extra money for First Class tickets and thereby get into the fast lane escapes me.

What’s next? A special line at the DMV for luxury cars (no waiting!! open 24/7!! )? A special, secret phone line for high earners connecting them to the Social Security Administration that will get their questions answered more quickly than the hoi polloi? It’s deeply anti-democratic and destructive, and if it’s not unconstitutional, it should be

There’s so many undeveloped arguments packed into the paragraph above.

Here are eight things I think the Post position fails to consider.

  1. Domestically, most first class passengers haven’t paid for the seat — they’ve been upgraded, because they are frequent travelers.

  2. It’s not ‘the rich’ it’s middle class middle managers. The rich either don’t have to travel (people come to them) or fly private (and so no TSA).

  3. On net frequent travelers spend more time going through airport security (because of the number of times they do it in a year) than people in non-premium lines.

  4. The greatest disadvantage of long security lines, or variable and unpredictable security lines, is airlines whose businesses are hurt — because driving or the train becomes a relatively better choice for short-distance travel. Premium security lines help minimize the business impact on the private entities harmed the most by the process.

  5. And anyone can get premium security, increasingly the TSA is trying to push the masses through Precheck — based not on class of service but such as on being a frequent traveler, going through Global Entry or PreCheck pre-screening.

  6. Everyone shouldn’t be treated equally at security because each traveler doesn’t have the same threat profile. That’s the point of PreCheck, and focusing on greater threats or giving less focus to lesser threats allows resources to be targeted to improve security. There’s a direct tradeoff here between ‘equality’ and ‘security’ if you buy that the TSA provides any security function whatsoever.

  7. A focus on premium security as a flashpoint in rich versus poor seems strange, because for the most part it isn’t the poor who are flying. Passengers (like law professors) in regular security queues are themselves already quite privileged.

  8. Meanwhile, the government’s position is that they control the checkpoints only and not the queuing up to those checkpoints. Management of the lines isn’t, in this way, a government function.

What do you think? Are premium security lines unfair to the masses?


  1. DBest said,

    Point #3 is the only defensible argument in my mind, if the question is why do some people get to cut the line? But it’s undermined by the fact that you dont need to be a frequent flyer to buy a J/F ticket, and get the same priority access.

  2. omatravel said,

    Most of the “priority” lines I’ve seen only go to the TSA ID checker and are setup by the airlines and the say for who can enter those lines is controlled by private staff. Not sure how that would compare with his examples of the DMV or Social Security.

    What’s even more surprising and sad is the 2nd part of the article about being able to leave the TSA area once entering it. How a law professor trying to comment on a legal issue totally ignores precedent does not provide me with much faith in his teaching.

    US v Aukai in the 9th circuit court of appeals has established that once you enter the TSA checkpoint you have consented to the search and you cannot rescind that consent by leaving the airport. As it’s an administrative search it’s not about being in “custody” as he asserts.

  3. jfhscott said,

    No, not unfair to the masses. As I understand it, premium security is part of a contractual arrangement between the carrier and TSA. “The masses” don’t get premium security because they have not done what the carrier rquires – earning status or paying more for a ticket.

    Nor do I mind the idea of selling cut the line privileges at the DMV. (Thank God I do not have status there!!!!!). It theoretically funds the DMV through sources other than the wallets of the masses.

    What troubles me is the following:

    “It’s deeply anti-democratic and destructive, and if it’s not unconstitutional, it should be.”

    The dude can claim it is anti-democratic, and even destructive, but the dude is a law professor. Save William O. Douglas in his most senile years – you know, when he thought trees could have standing – no jurist would hold it is unconstitutional, as Post suggests might be the case. And the faculty at Temple Law School might want to consider Mr. Post’s capacities.

  4. Matthew said,

    All great points Gary, though #7 increasingly less so, which is something we can be happy about.

  5. Alex said,

    Gary – good to point out that the TSA doesn’t run the line, just the checks.

    He also can also pay a number of government departments for expedited service, including the Passport Office, Copyright Office and others – is that buying better government service under his definition?

  6. Noah said,

    So the argument is that government shouldn’t be able to offer differentiated service? There goes priority mail… Everyone should have to send mail the same way. Toll roads shouldn’t charge differently based on axels. Also ignores the issue of taxes and fees. A frequent flyer pays more annually for security fees/taxes and should have benefits for that. No different than anyone who lives in a city in a big college town; they typically pay higher taxes but have good restaurants/bars/access to events that smaller counties and towns don’t have.

    I get it though, everytime I use my SW companion pass and see the security line a feeling of hostility begins to build…

  7. DaninSTL said,

    This is the same sort of argument you get from the typical socialist. “Everything should be equal for all people and if it’s not “rich” people should share and be punished”. It’s not even a rich vs poor thing. The TSA knows that experienced travelers on average are packed correctly, pay more money to fund the operations and on average are less of a security threat. Just about anyone can get the same treatment if the fly a lot, have the right credit card, etc.

  8. Brian L. said,

    This guy’s a moron. I wonder if he knows Chris Elliott. If not, someone should introduce them, they’d probably hit it off.

  9. Matt said,

    Priority access doesn’t get you better service, just faster service, and paying for faster government service is something that is ALREADY available elsewhere. For example, you could pay extra to have a passport expedited by the state department, or for a package to be overnighted by the postal service – not better service, just faster.

    Paying for more favorable service would be bribery. For example, if they bent the rules for premium customers and allowed them to carry bottles of water and weapons past security, THAT would be undemocratic.

  10. Gary said,

    I think the point about premium service across the federal government is a good one, from expedited service for passports to priority mail (the USPS is a quasi-government agency with a legal monopoly on first class mail). As is the prevalence of user fees across the government. Immigration queues are another area, you can pay the immigration service a premium processing fee that is more expensive than many first class tickets to get a decision more quickly for instance!

  11. jfhscott said,

    I’ll add a little here. Item 3, above, (pax with status spend lots of time at airports) is not all that compelling UNTIL one recalls that such folks as a class are more efficient getting through security and, in equity, may deserve separate line.

    But Gary is correct – by virtue of being on a plane at all – anyone in hoi polloi security is still likely to be better off than most. They generally have relatively privileged existences – and perhaps this is why some of them get wrankled over some getting privileges they are not accorded.

    And, no, I have no data, but I would read empirical data identifying the wealth/incomes of pax on a typical flight with interest. My guess – 50% are in the top quintile, 35% in the next, and 15% in the bottom 3 quintiles.

  12. Todd said,

    I’m quite certain the article would never have been written were he in the “other” line.

    @Gary – I had to re-read this sentence a couple times. I don’t believe you intended the word “been”; “Domestically, most first class passengers haven’t been paid for the seat”

    I was going to ask where the line up is to be paid to travel in first ;-)

  13. Julian said,

    Right to the point Gary. Obviously he was ticked off that he was waiting a long time and decided to go on a populist rant hiding behind his law professorship.

  14. peachfront said,

    @gary Don’t feed the trolls. Even this so-called law prof can’t possibly believe what he wrote, so why give him the clicks? You make great points –“Everyone shouldn’t be treated equally at security because each traveler doesn’t have the same threat profile” — but I don’t know if you necessarily need to link to clickbait to make those points. Everyone else makes great points too, especially @matt.

  15. Gary said,

    @Todd thanks I wrote this too early in the morning..

  16. Gary said,

    @jfhscott I’ve seen data on income of an average airline passenger and it’s certainly six figures

  17. Chas said,

    What Prof. Post fails to consider is the possibility that the distortion he observes which allows people to “pay” for better government service is not due to the existence of priority security lanes per se, but instead a result of the fact that the government is in the business of managing airport security screening.

    Also, a rant: I personally have had enough of diatribes such as this based on the same vacuous distinction between “rich” and “poor.” If you view the world in this simplistic and unnuanced fashion, I suspect you (deservedly) lead a fairly miserably existence. There is just not merely one kind of “rich;” there are those who got rich taking immense personal and financial risk (think Silicon Valley), and there are those who got rich putting the risk on backs of others (bankers, bureaucrats, and the like). To those that have a problem with the former category I’m not sure what to say; if you are disturbed that someone who literally put the internet in the palms of nearly half the world’s hands would become fabulously wealthy, you may need to find another planet entirely. If you have a problem with bankers earning recording payouts just a year after the taxpayer largest bailouts in history or regulators finding multi-million dollar jobs helping the private sector find ways around the regulations they formerly created, then you can rest assured your moral compass is working. What bothers you in the latter case, though, is not “rich” but something else entirely. Time to start making a distinction.

  18. Chris said,

    One thing that I’m surprised you (as a Libertarian) didn’t bring up: where is the federal government’s rightful place in airport security screening, anyway? Prior to 9/11, it was a private enterprise in a private contract between private parties (the airlines, the passengers, and the screening companies). If this guy’s post had been authored in 1995 or 2000, it would have been laughed off the pages of the Post–private enterprise has every right to reward frequent customers.

    The fact that the federal government came in and nationalized the screening industry shouldn’t deprive frequent flyers of the arrangements they’ve had with the companies they’ve been doing business with.

  19. Nick said,

    I agree with Bryan. The guy’s a moron. He is playing off the current “politically incorrect” spin that America is a bad, unfair country that treats everyone unequally. Hogwash – BLAH to him and his lousy article.

  20. jfhscott said,

    @Gary Thank you for the datum. That is actually a tick higher than I would have guessed. (Not that I doubt your datum, as I am certain you have a far larger library than I).

    But this confirms to me (as you suggested earlier) that many people who are in the regular security line are folks who are not accustomed to being denied privileges, and might find the taste of humble pie unappealing.

    Perhaps what Mr. Post should find “deeply anti-democratic and destructive” is that the ALL passengers, who are predominantly well off, enjoy indirect public subsidies when ever they fly without respect to the security line they use.

  21. GUWonder said,

    A TSA profiling advocate? Gleff, I’m disappointed in reading “6”. Computerized or not, something approaching 100% of passengers departing from US airports are of no danger to my flights and deserve to be treated as equally non-risky, so let’s just abandon the voodoo “security” of “profiling” by TSA for passengers flying from a US airport. The BDO/SPOT nonsense in computerized form that relies upon messed up databases is what TSA PreCheck determinations are.

    The default screening for passengers in the main at TSA screening checkpoints should be the PreCheck LLL type of screening but without the ID and boarding pass checking and without the background and profiling junk “science”.

  22. John said,

    #8 is an interesting point. I wonder what the consequence would be if someone ignored the airline employee policing the premium line and simply proceeded to the TSA agent handling that line. No TSA rule has been broken. Perhaps one day I’ll give it a try – when I’m not in too much of a hurry, of course…

  23. Bill said,

    Nothing will please everyone all the time, and that’s the way it always will be.

    For the flying public, EVERY American is eligible to apply for TSA Pre or Global Entry, and those deemed trustworthy are given the simpler and faster screening privilege. It is totally democratic.

    For the airline premium passengers, getting their own premium screening line(s) is also perfectly legitimate. If you want more, you pay more, that’s the way it is. Premium flyers either pay more, fly more, or use points more, and that value to the airlines comes with additional perks–as with everything else in a capitalistic society (and even socialist societies like those in Europe).

    The law professor is a whiner, shouting at the rain because others are getting something he or she is not.

  24. DaveS said,

    As one who is often well to the right of center politically, I feel somewhat weird defending the professor’s view in part. All these other examples commenters offer of paying for differentiated services from the government come from actually paying more to the government itself. You want priority mail, you don’t pay Delta. You want expedited passport service, you don’t pay Southwest.

    The issue is whether a taxpayer funded agency should offer better service based on how much you paid to American Airlines for your ticket or based on your status with United. The TSA absolutely should differentiate based on security risks (or go away altogether), but should it treat people differently based on airline status or class of ticket?

    Without a doubt the airlines themselves have every right to provide you with all the perks they control – free baggage, better seats, priority check-in and boarding, upgrades, etc. – based on status and class of ticket, but such perks should not extend to any differentiated treatment by tax-funded agencies.

  25. Joe said,

    I agree with DaveS, above. I am surprised at the ill-informed analogies in the comments. If those flying in premium classes paid a higher departure tax – like in the UK – then you may be able to justify their faster lines…

  26. Chris said,

    DaveS–your point makes sense on the surface, but one thing that affects your point is that technically, the space the lines and stanchions are on is not federal government/TSA land but rather airport authority land and managed by the airport in conjunction with the tenant airlines. Thus, the airport and airlines can do whatever they want with controlling access to the TSA checkpoint in whatever manner they want. TSA doesn’t have any say over how the airport chooses to direct people to the checkpoint, so the argument that you’re receiving a differentiated service from the federal government doesn’t apply.

    Now, if first-class/elite fliers were treated differently within the checkpoint itself–allowed to bypass the X-ray/AIT/WTMD scanners entirely and just waltz into the secured area or something, then that argument would have merit, but premium passengers are subject to the exact same screening rules as everyone else once they arrive at the TSA document checker’s podium.

  27. J.C. said,

    Point #8 is a lie.

    If you get in the “wrong” line, TSA will kick you out and force you into the “correct” line. Yes, TSA — federal government employees — and not airport staff. For your theory to be even remotely truthful, they’d need an airport employee controlling the line. And by the off chance someone not “qualified” for PreCheck makes it to the head of the line TSA would still have to allow then to proceed. That does NOT happen.

    Point #6 is simply retarded.

    The fact is that you don’t know the threat or security profile of those the airline sells PreCheck to. Yes, sell. The airline gives PreCheck to passengers because they are perceived to be a profit center for the airline. The airline has absolutely no idea if their medallion member is a felon. And it’s virtually impossible that they don’t have felon medallion members. Two quick trips across the Pacific can give your average felon PreCheck.

    You need to focus more on precisely pouring milk into a bowl of cold cereal than on discussing security threats.

    While you are entitled to your opinion, you are not entitled to your own facts.

  28. jfhscott said,

    @DaveS I understand your point to be that there are some governmental services for which “premium” service should not be available. Chris, above, identified that premium security services are made available as a result of arrangements made by the carriers, airport authorities and TSA together.

    But even if that were not the case, I would have little problem with “pay for convenience” of public service. The fees, if calculated properly, can go a long way to paying for the services all use. I’d pay for it at some airports. Not DCA, where even the regular security lines are typically bearable. Not IAD, where the “premium” service is a shorter line at the entry point, after which one gets mixed in with all passengers, providing no meaningful advantage. But ATL? LAX? There is real money to be made there, and such money may be considerable enough to fund security/airport operations. I find the notion far preferable to funding such functions through taxation.

  29. Gary said,

    @JC do explain more about your theory of how the airline sells precheck? Do disagree with facts here, hopefully by offering your own otherwise-neglected facts, but in any case with discourse above the level of referring to arguments you don’t like as “retarded.”

  30. Chris said,

    J.C. said:

    “If you get in the “wrong” line, TSA will kick you out and force you into the “correct” line. Yes, TSA — federal government employees — and not airport staff. For your theory to be even remotely truthful, they’d need an airport employee controlling the line.”

    Not sure how much J.C. flies, but as a 100,000-mile-plus flyer, I can attest I have NEVER had a TSA agent check my elite credentials. And at most airports, there is indeed an airport employee (typically a subcontractor, like Airserv or Huntleigh) controlling access to the premium security line. In the occasional instance where the contracted line monitor isn’t present but the elite line is still open (common at ANC at off hours), anyone can waltz into the premium line and through security without ever having to show elite status.

    And Gary already answered this point, but airlines do NOT sell PreCheck. If you want to get mad at anyone for selling PreCheck, go talk to DHS.

    Sorry, J.C.; you’re wrong on all accounts.

  31. John Seal said,

    In the eyes of the state, we’re all potential criminals. If that’s the way the state views us, we should insist that EVERYONE experience the same ridiculous security theater. Screw the priority lines and the rich scum who take advantage of them.

  32. Paul said,

    Think you’re dead wrong on this Gary. Why is a biz traveller/frequent traveler any more entitled to faster service than anyone else? I can see if you paid a premium to get expidited service, but not the mere fact you fly a lot.

  33. Chris said,

    @John Seal: Rich scum? I first hit elite status in 2007, when I was still in college and was making $30,000 a year and spent just over a grand that year on airfare. You don’t have to be “rich” to gain access. Why don’t you learn a little about how it works before casting aspersions on things you know nothing about.

    @Paul: The answer to your question is so obviously Business 101 that I’m really not sure I should invest any energy in answering it, but it’s in the airlines’ interests to reward their frequent customers. It incentivises them to come back and spend more with them over another company.

  34. Bill from maine said,

    #9-It’s the Washington Post.

  35. Gary said,

    @Bill from maine – well, it’s the Volokh Conspiracy blog that’s now housed by the Washington Post and that skews right of center actually.

  36. DFWSteve said,

    USA airports are routinely ranked as some of the worst, from a global perspective. Security and immigration are two of the negative factors. Get people – regardless of class or rank – through the queues efficiently, quickly and quit worrying about elite lanes, special privileges and so forth.

  37. ed said,

    The only valid argument in favor of the professor’s stance (which he didn’t make) is this: if people can buy their way to more convenient passage, where will the outrage exist that dismantles this absurd dog and pony show? Instead we’ll just be feeding this bureaucratic monster so that it can become larger.

  38. Kate Y. said,

    I will say this: Anyone whose job it is to decide what the default traveler shall undergo at these chokepoints should NOT be able to use any kind of special-case expedited shortcut. They need to know, on a personal level, the impact of what they impose on others.

  39. Pete Freans said,

    So elite flyers want a separate line, on top of the already separate line for Precheck (reminds me a little of Double Secret Probation in the movie Animal House). The idea does seem elitist to me…

    Joking aside, I don’t have a problem with “elite flyers” having a separate line. All they have to do is to pay out of their own pockets (again) a fee to Uncle Sam and the TSA should consider accommodating them. I certainly should not have to pay for someone else’s comfort.

    To follow up on one of the above points, what would the economic impact be if elite flyers wish was granted and they arrived to their business class seats sooner? Not their destinations, may I emphasize because I can’t find the italics font. Their seats…the logical lawyer in me can’t quite understand so hopefully an economist can help me.

    As a side note, I’ve been a reader of the Volokh Conspiracy for several years and it’s philosophy is primarily a libertarian jurisprudence. Whether that’s right of center is up for debate.

  40. Chris said,

    @Pete Freans: Why should elite flyers have to pay any extra fees to Uncle Sam? The federal government isn’t responsible for the lines leading up to the TSA checkpoint. As I and others have said above, the airports in conjunction with their airline tenants (the ones who, you know, pay for the space) are responsible. And the airlines have (rightfully) decided that rewarding their frequent travelers with a little less of a wait is a good thing.

  41. Pete Freans said,

    @ Chris: Would the TSA be required to position one of their agents for elite flyers?

  42. Chris said,

    @Pete: At slow airports or checkpoints or at off-hours, they don’t–it’s simply two lines that merge into one, and the TSA document checker (since they don’t care about elites) simply alternate between the regular line and the elite line. Seems fair to me.

    And at busier checkpoints, TSA staffs their checkpoints and opens the requisite number of lanes based on overall passenger volume, so the same number of people are processed anyway. I am not aware of any instances where TSA is providing extra staff to handle premium security lanes (other than PreCheck, but that’s a TSA program open to anyone), and if volume in the premium lanes is low, staff are reassigned to other areas or non-elite flyers are directed over to fill in any unused scanners.

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