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.
HB 1937 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.
“All that HB 1937 does is require that the TSA abide by the Fourth Amendment to the US Constitution,” commented Senator Simpson. “We aren‘t even prohibiting the pat-downs, per se. We‘re just saying you can‘t go straight to third base. You have to have a reason—you have to have probable cause—before groping someone‘s sexual organs.”
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.
Another powerful argument against the DOJ position is that the proposed legislation specifically protects the Fourth Amendment right to be free from unreasonable searches and seizures, a protection which supporters argue the TSA regularly violates. If the TSA is behaving unconstitutionally can the federal government legitimately defend their actions?
In an unprecedented development on Tuesday as the bill was being debated, Lieutenant Governor David Dewhurst took to the floor of the Senate, organizing opposition to the bill and generating support mostly from Democrat lawmakers to pressure Senator Patrick to withdraw the bill.
In response to the federal threats and weakening support from intimidated lawmakers, Senator Dan Patrick (R-Houston) withdrew the bill from consideration on Tuesday, though it is hoped that it will be put back on the docket for Wednesday.
Defending the bill on the Senate floor, Senator Patrick declared “There was a time in the history of the state where we did not cower to rules and policies that invade the privacy of Texans. This was a ‘come and take it’ moment…The federal government came in and bullied the state of Texas today. They said ‘If you dare pass a bill that makes us change our policy, then we threaten to close down your airports.’”
Local citizens groups which have backed the bill are working hard to lo generate calls and emails to legislators and other officials in support of the bill, including Support Dignity, Stop Austin Scanners and the Republican Liberty Caucus of Texas. Similar legislation has been introduced in New Hampshire, Utah, Alaska, Florida, Pennsylvania and New Jersey.
The fate of the Texas bill will likely determine how this sort of legislation fares in other states. With public sentiment overwhelmingly against the TSA after numerous reports of inappropriate searches, federal authorities may be touching a match to a powder keg with their intimidation tactics.
We are encouraging RLC members in Texas and around the country to contact Texas legislators and other political leaders to raise awareness of this gross violation of individual and states rights. Contacting Lieutenant Governor Dewhurst and Senator Dan Patrick would probably be particularly useful, as would promoting this issue in the national media. Contact information can be found at Stop Austin Scanners.
Some portions of this article appeared in slightly different form on Blogcritics