The Problems with a Department of Justice ‘No-Fly’ List for Misbehaving Airline Passengers

I n the aftermath of the 9/11 terror attacks in 2001, the U.S. government created a “no-fly” list to ensure that those seeking to cause chaos and terror in our skies couldn’t replicate the attacks that happened on that horrific day. Today, the Biden administration is considering a new no-fly list — but one with potentially sobering implications for ordinary Americans.

In the wake of a long pandemic year with increased violent and unruly incidents on airplanes around the country, the CEO of Delta Airlines Ed Bastian recently called for a new federal no-fly list for passengers behaving badly on commercial airlines.

This gave me serious pause.

To be clear, I do not believe that those who act erratically and endanger others on commercial airlines should avoid consequences. To the contrary, I believe that belligerent or violent behavior on a plane that threatens the life and safety of crew and fellow passengers is unacceptable, and that guilty individuals should be prosecuted to the fullest extent of the law. I also recognize a private airline’s right to ban individual travelers after such incidents. However, I am concerned about the ramifications a new no-fly list might have. That is why I wrote to the Department of Justice asking it to reject this request absent explicit direction from Congress.

Let’s start with the unintended consequences of the current no-fly list. While our terrorist no-fly list has no doubt kept terrorists out of the skies, it has also prevented innocent people with the same or similar names or aliases to individuals on the list from traveling freely. This is not theoretical: It happened to the late Senator Ted Kennedy on numerous occasions. Like every freedom-loving American, I oppose terrorists and want to keep our country safe. But the infringement of the rights of law-abiding Americans is unacceptable, no matter how unintended. The lack of transparency around who is on this no-fly list and why, along with due-process concerns on account of individuals ending up on the list without due process of law, have opened the list up to legitimate criticism.

I fear that a new no-fly list would have these same issues, but worse. According to data from the Federal Aviation Administration, the majority of recent incidents on airplanes have been related to the TSA’s mask mandate — a mandate the CEO of Southwest Airlines recently admitted likely does very little to protect fliers from Covid-19. This means regular Americans could end up on a no-fly list over a questionable federal policy. Moreover, the fact that this new list would be the only one in existence aside from the list for purported terrorists risks making the two seem of equal weight.

The Department of Justice should not be in the business of severely restricting the ability of American citizens to fully exercise their constitutional right to engage in interstate transportation. While Senate colleagues who share my concerns and I have been mocked for our stance, it is not far-fetched to worry that a Biden administration Justice Department might abuse such a list. Look no further than President Biden’s Department of Education for an example.

Earlier this year, we learned that Education secretary Miguel Cardona colluded with the National School Board Association on its letter comparing concerned parents to domestic terrorists and demanding the Biden Justice Department respond. Attorney General Merrick Garland told the House Judiciary Committee that the NSBA letter instigated the FBI’s investigation into parents.

If it is decided that we do need to create a no-fly list for unruly passengers, the task should fall to Congress, not to unelected bureaucrats. Congress reflects the will of the people. Members of Congress are accountable to those who elected them. Attorney General Garland and his staff at the Department of Justice are not.

Dangerous and belligerent behavior on planes is unacceptable. Putting the safety of flight crews and fellow passengers in danger, regardless of one’s reasoning, is intolerable. But having the Justice Department unilaterally creating a new list will not fly with me.