The TSA Just Invented a Fee. That's Probably Illegal.
Starting February 1, 2026, the TSA began charging travelers $45 to fly without showing ID. No congressional authorization. No public comment period. Just a quiet announcement and a new fee structure.
According to regulatory expert John Ohlendorf: it's illegal. The TSA doesn't have the authority to invent fees on their own. That's Congress's job.
What's the Fee For?
Previously, if you forgot your ID or chose not to present one, the TSA would put you through additional screening—more questions, database checks, maybe a pat-down—at no extra charge. It was slower and more annoying, but it was free.
Now they're calling it "TSA ConfirmID" and charging $45 for the privilege of using their "modernized alternative identity verification system." The screening process appears to be basically the same. You're just paying for it now.
The TSA's justification is that verifying passengers without ID creates "administrative burden." So they're offsetting costs.
Why This Is Probably Illegal
Federal agencies can't just make up fees. The Constitution gives Congress the "power of the purse"—only the legislative branch can authorize new taxes, fees, or charges on the public. Agencies need explicit statutory authority.
The TSA's existing fees—like the September 11th Security Fee that's baked into your ticket price—were explicitly authorized by Congress. The PreCheck fee ($78 for five years) operates under different authority as an optional enhancement service.
But this new $45 charge? There's no clear statutory authorization. The Aviation and Transportation Security Act of 2001 gave the TSA broad powers to secure transportation, but it didn't give them blanket authority to invent new fee structures.
This matters because of the Administrative Procedure Act (APA), which requires agencies to:
- Provide notice before implementing major policy changes
- Accept public comments
- Demonstrate they have legal authority for their actions
The TSA appears to have done none of these things. They just... started charging.
The Judge's Test: "Are They Acting Like It's Real?"
Here's a useful heuristic from a recent offshore wind case (where judges also smacked down dubious government claims): look at whether the agency's actions match their stated reasoning.
If the TSA's concern is security—that verifying passengers without ID creates risks—why are they still allowing it for a fee? Shouldn't they either ban it entirely or allow it for free if it's secure enough?
If the concern is administrative burden, why is the fee $45? Is that the actual cost of the additional screening? There's no cost analysis, no breakdown, just a number that seems... made up.
Courts use the "arbitrary and capricious" standard to evaluate agency actions. This fee feels pretty arbitrary.
Why Founders Should Care
Agencies love inventing rules without congressional oversight. It's faster, it avoids political fights, and it's harder to challenge. But it's often illegal. If you're in a regulated industry and an agency invents a new requirement that seems to come out of nowhere, check whether they actually have the authority.
The APA is your friend. If an agency doesn't follow proper rulemaking procedures—notice, comment, legal justification—their rules might be invalid. This is especially true for "major" rules that significantly affect the public or industry.
Agencies count on you not fighting back. Most people will just pay the $45 rather than miss their flight. Most startups will comply with dubious regulations rather than risk enforcement. But if enough people push back—through complaints, lawsuits, or congressional pressure—agencies often back down.
How to Fight It (If You Want To)
File a complaint. Contact your congressional representative's office. Congressional oversight committees love finding examples of agency overreach. Even if nothing comes of your individual complaint, aggregate complaints can trigger investigations.
Document everything. If you're charged the fee, keep records. The boarding pass, the credit card charge, any interactions with TSA staff. If this ends up in court (and it might), plaintiffs will need evidence.
Refuse to pay (strategically). You can decline to pay the fee and request the traditional additional screening. They can't deny you boarding just because you won't pay—you still have the right to fly with alternative verification. Whether individual TSA agents know this is another question.
Support litigation. Civil liberties groups (like the ACLU) and regulatory watchdogs are likely exploring challenges to this fee. If you've been affected, reach out to them. Class actions need class members.
The Quiet Part About Administrative Overreach
This isn't really about $45. It's about whether agencies can unilaterally create new revenue streams without congressional authorization.
If the TSA gets away with this, what's next? A fee for opting out of facial recognition? A charge for requesting manual bag inspection instead of X-ray? Agencies could turn every security procedure into a profit center.
The flip side: if someone successfully challenges this fee, it could set a precedent that constrains other agencies. "Show me the statute that authorized this fee" becomes a winning argument across the federal government.
What's Likely to Happen
One of three things:
- Congress explicitly authorizes the fee. Lawmakers love looking tough on security, and $45 for people who "forget" their ID might poll well. This legitimizes it retroactively.
- Courts strike it down. Someone sues (or a bunch of someones sue), and a federal judge says "yeah, you can't just invent fees." TSA either drops it or goes back to Congress for authorization.
- Nothing happens. People complain but ultimately pay. The fee becomes normalized. In five years we forget it was ever controversial.
My money's on option 3, unfortunately. Most illegal-but-convenient government actions become accepted through sheer inertia. But if you're the kind of person who likes tilting at bureaucratic windmills, this is your moment.
Pack your ID. Or pack your legal arguments. Either way, February 1 just got more interesting.
