Department of Homeland Security v. MacLean Page 2

Department of Homeland Security v. MacLean general information

Media for Department of Homeland Security v. MacLean

Audio Transcription for Oral Argument - November 04, 2014 in Department of Homeland Security v. MacLean

Audio Transcription for Opinion Announcement - January 21, 2015 in Department of Homeland Security v. MacLean

John G. Roberts, Jr.:

It argues that MacLean's disclosure was prohibited by a statute, namely the very statute that empowered TSA to issue the regulations about which documents may not be disclosed.

But that doesn't work either.

The statute doesn't prohibit anything, instead it authorizes something.

It authorizes TSA to issue regulations.

The government and the thoughtful dissent in this case responds that the statute is essentially a prohibition, because it requires TSA to ban disclosures like MacLean's.

We conclude however that this view does not give sufficient weight to the substantial discretion that TSA has in deciding whether to prohibit any particular disclosure.

It is TSA's regulations that prohibited MacLean's disclosure and those regulations, for the reasons I mentioned earlier, do not qualify as law under the whistleblower statute.

Now, the government warns that providing whistleblower protection to people like MacLean will endanger public safety.

That protection the government argues will allow TSA's employees to decide for themselves whether to disclose information, like MacLean did here, even though those employees do not have all the facts about why TSA made the decision it did.

Those are legitimate concerns, but they are concerns that must be addressed by Congress or the President, not by this Court.

We have to take the law as it comes to us, and as we describe in our opinion, Congress and the President each has the power and available means to address the security concerns that have been raised, but they have not done so.

The judgment of the Court of Appeals for the Federal Circuit is affirmed.

Justice Sotomayor has filed a dissenting opinion, joined by Justice Kennedy.