Competitive Enterprise Institute v. Department of Homeland Security

The Competitive Enterprise Institute (CEI) and the Rutherford Institute sued the Transportation Security Administration (TSA) on May 2, 2016, over its airport body scanner rule, which was published after lengthy delays on March 3, 2016. 

CEI argues that the TSA arbitrarily downplayed the intrusiveness of its scanners, which are replacing walk-through metal detectors at many airports. As a result, the agency ignored the fact that the scanners will cause many would-be air travelers to drive instead. But because car travel is much riskier than air travel, the net result could be an increase in overall travel fatalities.

CEI’s petition was filed in the U.S. Court of Appeals for the D.C. Circuit. CEI filed its opening brief on September 26, 2016, and reply brief on December 13, 2016. We are awaiting a date for oral argument to be set. 


In July 2011, a court ruled that TSA’s body scanners were in violation of the Administrative Procedure Act (APA) and ordered the agency to publish a notice of proposed rulemaking. After almost two years, the TSA finally issued a proposed rule in March 2013. However, the TSA dragged its feet again. In July 2015, CEI and the Rutherford Institute sued the TSA for failing to issue a final body scanner rule, or take any other steps toward meeting the APA’s requirements, after another two years of waiting. On October 23, 2015, the D.C. Circuit ordered TSA to quickly complete its rulemaking regarding the body scanner issue. On March 2, 2016, the TSA issued its final rule.