TSA vs. Texas

The Washington Times Weekly - - Editorials -

Texas is gear­ing up for a fight with the Trans­porta­tion Se­cu­rity Ad­min­is­tra­tion (TSA) over its per­verse air­port screen­ing tac­tics. The state House of Rep­re­sen­ta­tives unan­i­mously ap­proved leg­is­la­tion hold­ing TSA agents ac­count­able for their con­duct un­der sex­ual ha­rass­ment statutes. Like most Amer­i­cans, these Lone Star State lawmakers are fed up with be­ing groped, ir­ra­di­ated and pho­tographed in the nude as a pre­con­di­tion for travel. Such treat­ment would come to a halt in Texas if House Bill 1937 be­came law. The mea­sure pro­poses se­ri­ous crim­i­nal penal­ties for any “pub­lic ser­vant” who touches a pas­sen­ger in a sex­ual or other­wise of­fen­sive way ab­sent prob­a­ble cause.

The prospect of TSA bu­reau­crats be­ing hauled out of air­port ter­mi­nals in hand­cuffs has sent the agency scram­bling. “What’s our take on the Texas House of Rep­re­sen­ta­tives vot­ing to ban the cur­rent TSA pat-down?” the of­fi­cial TSA blog asked in an ar­ti­cle posted Satur­day. “Well, the Supremacy Clause of the U.S. Con­sti­tu­tion (Ar­ti­cle VI Clause 2) pre­vents states from reg­u­lat­ing the fed­eral gov­ern­ment.” In other words, Un­cle Sam has un­lim­ited pow­ers, and there’s noth­ing the states can do about it.

The bill’s spon­sor in the up­per cham­ber, state Sen. Dan Pa­trick, thinks it’s highly in­ap­pro­pri­ate for a fed­eral agency to ex­pend tax­payer re­sources with state­ments de­signed to in­flu­ence ac­tion pend­ing be­fore a state leg­is­la­ture. “That’s not their job,” Mr. Pa­trick told The Wash­ing­ton Times. “Their job is to screen pas­sen­gers at air­ports in a proper man­ner, not to be­come in­volved in lob­by­ing and leg­is­la­tion. They’re tread­ing on dan­ger­ous ground.” Mr. Pa­trick is op­ti­mistic that the bill could move to the Se­nate floor next week, but the Se­nate Trans­porta­tion and Home­land Se­cu­rity Com­mit­tee would have to hold a spe­cial hear­ing by week’s end.

As for TSA’s ar­gu­ment, state Rep. David P. Simp­son an­tic­i­pated the con­sti­tu­tional clash when he wrote the bill. “The 10th Amend­ment was put in place to re­strict the fed­eral gov­ern­ment from in­trud­ing on the pow­ers ‘re­served to the States . . . or to the peo­ple,’ ” Mr. Simp­son told The Wash­ing­ton Times. “Bu­reau­crats can’t sim­ply make a rule and wish away the Con­sti­tu­tion.” In the event of a chal­lenge, the leg­is­la­tion or­ders the state at­tor­ney gen­eral to de­fend the law as a valid ex­er­cise of the pow­ers re­served to the states un­der the 9th and 10th amend­ments.

Mr. Simp­son’s bill also pro­vides an es­cape clause, al­low­ing TSA agents to es­cape pros­e­cu­tion by cit­ing “an ex­plicit and ap­pli­ca­ble grant of fed­eral statu­tory au­thor­ity that is con­sis­tent with the United States Con­sti­tu­tion.” This high­lights two facts: TSA has no law ex­plic­itly au­tho­riz­ing the grop­ing of passen- gers, and the con­sti­tu­tion­al­ity of this in­va­sive tech­nique is du­bi­ous.

So far, in­stead of catch­ing ter­ror­ists, the TSA it­self has ter­ror­ized tod­dlers with sippy cups, se­niors with med­i­cal im­plants and in­fants with “ex­plo­sive” di­a­pers. Agency op­er­a­tives can treat the pub­lic with con­tempt be­cause, as union­ized em­ploy­ees, they have guar­an­teed life­time em­ploy­ment. Agency lead­er­ship can con­tinue to do what­ever it wants be­cause Congress has proved too cowardly to act.

Though the fed­eral courts con­sis­tently up­hold laws that in­crease fed­eral power at the ex­pense of the states, it’s time to force them to re­visit the is­sue. Per­haps it would be enough for Home­land Se­cu­rity Sec­re­tary Janet Napoli­tano to have to post bail money for her own em­ploy­ees to en­cour­age change. The Texas Se­nate lead­er­ship needs to get mov­ing on this key leg­is­la­tion be­fore the reg­u­lar session ends.

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