The incident at John F. Kennedy Airport, where Customs and Border Protection Agents boarded an incoming flight from San Francisco and asked for—or demanded––ID from every passenger, has hit a nerve with many people—some of whom, like me, think that a demand that passengers exiting a domestic flight show “papers” would probably be unconstitutional, and definitely smacks of a nascent police state.
But others have suggested that, because the incident took place at an airport, government agents actually have the legal authority demand ID from anyone. I researched the question further, and reached out to former government lawyers. But I still can’t find legal authority for a demand for ID from passengers on a domestic flight.
Remember the question: Can the Homeland Security immigration agents require passengers deplaning from a domestic flight to show ID? My answer is still that I can’t find any statutory authorization or any case that would permit such a requirement.
A CBP spokesperson characterized the incident as a “consensual” search—meaning, in other words, that the agents asked passengers if they would mind terribly showing ID as they exited.
Under the Fourth Amendment, law enforcement can almost always ask a person to voluntarily provide ID, or allow a search, even in situations where they can’t demand either. Unfortunately, the courts have usually held that the officers are not required to tell people they have the right to refuse. The test is whether a reasonable person would feel free to refuse. So in theory, the individual can say something like, “Am I free to go?” or just stroll away. In practice, many people are intimidated or persuaded to cooperate.