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.