The 5th Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
A person can be put onto the No-Fly list without ever knowing it, and without ever having committed a crime. How can the government impose a ‘sentence’ without due process? One could argue that due process was followed, but it’s secret. But that runs afoul of the 6th Amendment, which says that a person has a right to be confronted by his accusers; and that implies evidence be presented against him.
The 6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
What’s to stop the government from accusing a person of murder and throwing him in prison, and saying ‘Well, we have evidence; but the evidence is secret.’? Or confiscating all his property saying, ‘We have secret evidence that this person is a drug dealer.’?
IANAL but I imagine that not being able to fly on a commercial airline doesn’t rise to the level of prohibitions in the 5th amendment. You’re not being jailed or fined, forced to testify, being deprived of life, liberty or property. The question is do you have a right to fly on a commercial plane?
The murderer or drug dealer’s punishment is clearly in violation of the 5th amendment; he’s sent to prison or having his property taken. Not being allowed to fly isn’t either of those.
Recently, in the case Latif v. Holder, the government was ordered to revise its No-Fly List procedures to allow for meaningful due process, and noting that there was a constitutionally guaranteed right to international travel (at least.) These revisions are currently underway.
Before that court case, the feds have maintained that flying is not a right, since you have the option of bus, train or automobile for any domestic travel; keeping you out of the air does not deprive you of a right to travel. So just as a government can refuse to let you wander into an army base or the pentagon, they can also forbid you from entering an airport’s restricted areas.
Also, the government has a habit of shutting down lawsuits by arguing national security. You want the explanation of the rules for the list? You want the list? Sorry - National security would be compromised.
The FBI is allegedly using no fly list threats to recruit muslim snitches
It’s clearly a partial deprivation of liberty or property. You don’t have the freedom of movement that others have, and/or you must bear additional expense of the alternate transportation you’re forced to use.
Whether it’s enough of one that you could make a valid legal case on it is still an open question.