Coast Guard's Ferry Security Proposal - Constitutional questions raised about plan

By Chris Barron
Bremerton Sun Staff

10/31/02

Washington State - A congressional report looks at whether states can be forced to enact and enforce a federal program. If the state is required to enforce tough new Coast Guard security measures for its ferry system, it's questionable whether federal regulations would hold up to constitutional challenges, a congressional report says.

The Congressional Research Service report, requested by U.S. Rep. Jay Inslee, D-Bainbridge Island, says previous court rulings cast doubt on whether the federal government can force the state to enact a new security program under the 10th Amendment.

But the report adds that depending on how broadly the Coast Guard writes the regulations, it could withstand a constitutional challenge.

Inslee said some of the constitutional ambiguities might be resolved if the federal government were to pay the cost of enforcing the security regulations.

"There is a question about state funding and how (the regulations) will be funded," Inslee said. "We will meet with the Coast Guard and see what their intentions were."

Inslee also said he plans to express his displeasure with the Coast Guard for the way it pushed ahead with the security plan without input from the public and the state's congressional delegation.

"We're going to share our strong opinions," he said. "This is not a time for subtlety."

The Coast Guard proposed the tough new security regulations to ferry system officials about a month ago and strongly recommended they be enacted.

The measures, which call for increased screening of passengers and vehicles boarding state auto ferries, could cause traffic backups, schedule changes, fewer sailings and a loss of revenue for the ferry system if enacted, some state lawmakers said.

Then on Monday, the Coast Guard backed off on the proposed guidelines after being hammered with questions from members of the state's congressional delegation, who were not invited to help in developing the rules.

The Coast Guard informed U.S. Sen. Patty Murray, D-Wash., it would not enact the security measures unless a national emergency existed.

Coast Guard officials also confirmed that no terrorist threats have been made against the ferry system.

The congressional report on the proposal's constitutionality, which was requested by Inslee three weeks ago and released Wednesday, says previous court rulings have held that the federal government can't coerce states to enforce a federal program.

But Inslee said he is even more concerned about what he views as a violation of individual privacy under the guidelines, which call for screening thousands of ferry commuters daily if fully implemented.

He has ordered a separate report on the constitutional validity of the proposed rules under the Fourth Amendment, which bans unreasonable searches. That report has not yet been completed by the Congressional Research Service.

The most difficult issue in the guidelines, Inslee said, is the searching of vehicles and how to perform the function in a timely manner.

"There is legitimate concern about the amount of explosives you could bring aboard with 2,000 people on a ship," he said. "But I want to hear from the Coast Guard what their proposal is ... so that it wouldn't result in significant delays."

Inslee will meet with regional Coast Guard commander Adm. Erroll Brown and his staff Friday to discuss ferry security and the proposed guidelines.

The Coast Guard regulations envisioned increasingly stricter security measures as the perceived terrorist threat increased from Marine Security Level 1 to Level 3.

Under Marine Security Levels 2 and 3, passenger, baggage and vehicle screening would be required.

Setting up airport-style security measures at a ferry terminal would involve much greater logistical problems than at an airport, ferry officials said.

The screenings would include commercial and private vehicles and would need to be carried out during the small window of time between ferry arrivals and departures.

Airport security is now federally funded after the Aviation and Transportation Security Act was passed into law nearly a year ago, making it much less vulnerable to a constitutional challenge.

The law, which also calls for the hiring of 44,000 federal security screeners by next month, requires airports to screen all checked baggage with explosive detection systems by the end of this year.

"I've been very diligent on security issues," Inslee said. "I was involved in passing 100 percent baggage screening.

"I recognize the risks we have with the war on terrorism. But we combine that with practical life and that life has to go on. Shutting down the ferries or causing significant delays in commute time is not a price my constituents want to pay."