In a development which may be the first constitutional crisis to come out of the growing state sovereignty movement, the federal Department of Justice has threatened to shut down air travel in Texas if the Texas legislature follows through with passage of a popular bill limiting the power of the Transportation Security Administration within the state.
HB1937 is one of two bills authored by Rep. David Simpson (RLC-Tyler) designed to prevent the TSA from implementing unpopular security measures within the state of Texas. It would make it a felony for TSA agents to engage in certain forms of intimate touching during the course of an "enhanced pat down" of an airline passenger. If a complaint were made against TSA personnel they could be arrested and charged by local law enforcement.
Simpson's other bill (HB1938) addressed high-intensity scanners and stalled in the Texas House of Representatives, but the anti-groping bill passed the House unanimously, was approved unanimously by a Senate committee and was expected to pass with strong support in the Texas Senate Tuesday or Wednesday.
This is the point at which the federal government intervened. Reports began circulating on Tuesday of TSA bureaucrats descending on the state capitol to lobby legislators against the bill and then John E. Murphy, US Attorney for the Western District of Texas issued an official letter (PDF) on behalf of the Department of Justice to state legislators which threatened an injunction against the bill if it passed as well as stating that if an injunction were not granted the "TSA would likely be required to cancel any flight or flights for which it could not ensure the safety of passengers and crew."
The Department of Justice makes the argument in the letter that "under the Supremacy Clause of the United States Constitution, Texas has no authority to regulate federal agents and employees in the performance of their federal duties or to pass a statute that conflicts with federal law."
This argument is weakened by the fact that it is not clear that the TSA has legitimate federal jurisdiction over airports which are operated by local or regional airport authorities or private companies. Several major airports in other parts of the country have been able to opt out of TSA services and employ private security instead, and Texas airports could certainly provide adequate security as they did before the TSA takeover.
Article comments
— go to most recent comments1 - Dave Mundy
Sure is nice of the DOJ and TSA to help push more Texans into the Texas Nationalist Movement.
2 - charles goodwin
welcome to the real united states folks. its about time that the federal government learned that they and just a very limited entity constituted by the States which are sovereign. live with it. get used to it because much more restriction of your power is coming.
3 - Glenn Contrarian
Dave -
This argument is weakened by the fact that it is not clear that the TSA has legitimate federal jurisdiction over airports which are operated by local or regional airport authorities or private companies. Several major airports in other parts of the country have been able to opt out of TSA services and employ private security instead, and Texas airports could certainly provide adequate security as they did before the TSA takeover.
First of all, it is the duty of the federal government to regulate interstate business, is it not?
That, and those airports which 'opted out' of TSA services all signed an agreement to provide the same services as the TSA does, at the same level as the TSA does...including scanners and pat-downs. So if Texas is refusing to provide security at the same level as the rest of the nation, then the federal government's well within its authority, and it is Texas that is overreaching.
It would be nice, I must admit, if Texas were to go ahead and secede - I think most of America would be in favor of that! Most of America, that is, except for the rest of the red states who'd lose their biggest source of political support and capital.
4 - Glenn Contrarian
And btw - you do look a lot better with the beard. Good choice!
5 - handyguy
Because any flight originating in Texas and landing somewhere else needs to be considered safe/secure in both places, it seems unlikely that this law, if passed, would stand up in court.
Does Dave really support this? Slow news day?
6 - RealDeal
While Glen Contrarian does make a point regarding the regulation of interstate commerce, he fails to mention the fact that the fourth amendment protects against unreasonable search and seizure. So which part of the Constitution are we going to pick today to promote more progressivism? Applying your logic, the states don't have any rights. Therefore any argument, action or legislation passed or carried out by the omnipotent federal government must therefore be right and just. You can't just pick pieces to suit your needs. Show me where the constitution says that it is permissible for the federal government to mandate the full body search of its citizens. Better yet, show me where it says that it has the right to force a sovereign state to do so.
You will probably cite the supremacy clause next, or perhaps cite some made up regulation that permits the TSA to perform such searches. I will show you the fourth amendment which specifically protects against unlawful search. Just because some unlawful federal agency says they are entitled to search you for "your protection", does not make it a legal search. You may be well served to actually READ the commerce clause and maybe do a little RESEARCH, might I recommend Federalist # 22, #42, #44, and #46. This may shed some light on what the the commerce clause actually means.
Have Texas secede, that is the solution? I am not surprised. I would think the the predominantly center/right America would rather the progressives formed their own country and stop ruining ours. By the way, I am from a BLUE state. I am not a republican either. I am an American, and a self-proclaimed constitutional conservative. I am also a tax PAYER (where they take it and the don't give it back). I have no allegiance to any party or group, I think for myself and have my own opinions.
I hope Texas goes through with it and passes it. A no-fly-zone over the state of Texas will not sit well with the majority of the country. Political suicide. By the way, you think our no-fly-zone be like the one over in Libya? Do you think the U.S. military would be asked to enforce it? If I were Texas, I might consider that an act of war. After all, the states are sovereign entities. You may need to look that up too.
7 - Clavos
handy asks if Dave really supports Texas' viewpoint.
Based on the entirety of Dave's writng on this site, I'd say it's fairly obvious that he does.
So do I.
The feds are on a roll toward ever more control of our individual opportunities for choice.
They must be stopped.
This is a good start.
8 - Dr Dreadful
any flight originating in Texas and landing somewhere else needs to be considered safe/secure in both places
Indeed. Seceding wouldn't do Texas any good at all on this score, because (as is the case now with every inbound international flight) any departing flight with a destination in what remained of the US wouldn't be allowed to land there if the boarding screening didn't meet US standards.
And it's unlikely any prospective terrorist would consider the enhanced opportunity to bomb Flight 99999 from DFW to Lubbock in a 15-seater turboprop much of a publicity coup.
9 - Dave Nalle
Only after getting some sleep and having time to think did it really sink in how troubling and unprecedented the situation with the anti-TSA groping bill here in Texas really is. The idea that federal officials believe they can intimidate state legislators to kill a bill which is overwhelmingly supported by the citizens is more than disturbing. It's symptomatic of how completely off the rails our government is.
10 - Scott
Stand up Texas! Arrest the TSA agents right away. Evict them from the state. You have the might and you have the right. Issue arrest warrants for Obozo and Napolitano for violating the Constitution. If push comes to shove, declare independence. Me and everyone I know would swan dive accross your border to take up arms and defend you!
11 - America for Americans
Texas, you maintain a pretty awesome state military (State guard and a well equipped Texas Air Guard) not to mention the well armed militias, DPS, Texas Rangers, et.el. It may time for you to call out this force in defense of yourself. If you give in to this first test of your resolve, you will be pushed further and further into submission. Show your strength. Want some help? Sound the alarm and a call to arms! 300 million Americans support you and want to see Obozo and Napolitano thrown in prison or worse. Stand up to these thugs Texas! We the People are watching and a lot of us are eager to come to your aid!
12 - TSA Opt Out
"The Department of Justice makes the argument in the letter that "under the Supremacy Clause of the United States Constitution, Texas has no authority to regulate federal agents and employees in the performance of their federal duties or to pass a statute that conflicts with federal law."
This argument is weakened by the fact that it is not clear that the TSA has legitimate federal jurisdiction over airports"
It's pretty clear that the Feds have absolutely no constitutional authority to establish a TSA.
13 - handyguy
It's pretty clear that the Feds have absolutely no constitutional authority to establish a TSA.
It's pretty clear that extremists can't tell when their loony states-rights chest-beating becomes ridiculous and reckless.
If one asshole succeeds in blowing up a plane with material that could have been found via 'enhanced' security methods, this argument crumbles. Although I bet the louder of mouth and more numb of nuts among the commenters here will then find a way to blame that on Obama too.
Pass the popcorn.
14 - Clavos
If one asshole succeeds in blowing up a plane with material that could have been found via 'enhanced' security methods, this argument crumbles.
The thing is, handy, that even with all the groping and prodding, the likelihood of an aircraft being bombed is relatively high, because the TSA noobs really don't have a clue.
I'm flying in about a week. I think if I get groped (I haven't been yet) I'm going to start to moan and pant sexually while he is doing it -- louder if it's a woman "Ooooh yeah -- don't stop --harder." A la Meg Ryan in When Harry Met Sally.
15 - handyguy
"all the groping and prodding" is just more internet hype/myth. if you get groped and prodded you be sure to tell us about it. the extra patdowns are for people who refuse to go through the "MRI" type scanners. which are not at nearly every airport anyway.
This has nothing to do with a real problem. It is more libertarian hot air. It is laughable. I'm glad Texas doesn't have any real problems, like, say, underfunded schools and the lowest rate of people with health insurance in the country.
16 - Glenn Contrarian
Handy #15 -
Absolutely true!
17 - Irene Athena
I've watched my son go through an MRI and a frisking in the same screening episode. I was wondering what was taking so long, and I looked back and saw what was going on.
Do you have a link, handyguy to prove that this has changed since Christmas 2010?
18 - Dave Nalle
Handy, you show exactly the craven mentality which has gotten us where we are today. One terrorist incident or dozens are not sufficient justification for taking away peoples civil liberties. You make the same argument that racists make when they say that because crime rates are higher among certain ethnic groups they should be kicked out of the country or put in camps.
Dave
19 - Glenn Contrarian
Dave -
Do you know what happens whenever a terrorist blows up a plane? Ridership goes WAY down...and our airline industry suffers a real hit because of it. I love my personal freedoms, too - but I can set those aside for a couple embarrassing minutes in order to make sure there's a better chance that my family and I will make it to our destination alive.
Besides, wasn't it you that said a week or so ago that the real problem with the economy was civil rights?
20 - Dave Nalle
But Glenn, what we're talking about here is not real security, it's security theater. The TSA has yet to prevent a single terrorist attack. Other common sense measures have done that job much more effectively, most notably reinforcing cockpit doors and putting armed air marshals on more flights.
The TSA's role is purely to intimidate and that intimidation seems directed more at passengers than at anyone else.
Dave
21 - Robin White
While the Hamiltonians tout their Commerce Clause for giving them a foot in the door to trump the rights of the individual, and the forever-frozen-in-hysteria bemoan the possibility of terrorists blowing up planes and disrupting commerce (?!?), the fact is that TSA agents have stopped not one terrorist. All the recent thwarted wannabe terrorists (e.g, shoe bomber, underwear bomber) were stopped by private citizens exercising their individual rights.
22 - Dave Nalle
Bingo, Robin. Security theatre for the ignorant masses.
Dave
23 - Clavos
...the extra patdowns are for people who refuse to go through the "MRI" type scanners...
Not always. They can't legally admit it, but they are profiling.
The world's best (in terms of effectiveness) airport screening process is, and always has been, (since the 1967 war) El-Al's operation in Israel. Not being as squeamish as the US about it, profiling is the linchpin of their system, and it is widely recognized within the airline industry as the world's most effective.
Interestingly, their security operations at the US airports they serve are far less effective because they are restricted by the FAA's squeamishness, and in fact, at LAX they have had more than one breach.
Perhaps it's because it's located in notoriously flaky southern California, but LAX does seem to report more breaches overall among US airports.
24 - handyguy
There was a lot of hype about this before Christmas, so much so that I got nervous about it myself...just seemed like more hassle.
But at NYC's LaGuardia, 5 days before Christmas, there were no body scanner machines yet, and security was the same as previous times: about 15 minutes to stand in line for metal detectors and x-raying carry-ons. It was, literally, nothing.
Cable news was going apeshit about the expected complaints from travelers...which never materialized.
If you added up all the genuine complaints about truly invasive searches and compared it to the number of people flying, I'm sure it would be a tiny fraction of 1%. This is a symbolic issue, not a real issue. And as a 'states=rights' test case it is bogus and doomed to failure.
Find something meaningful to bloviate about.
25 - Glenn Contrarian
Dave -
The TSA has yet to prevent a single terrorist attack.
And you base that claim on...what? Talk about logical errors...Dave, do you not know enough about government to know that they will never - never! - tell us about every threat they know about, or every threat they've stopped?