DIAMOND: TSA vs. Texas

Showdown over pat-downs opens important constitutional debate

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Should Congress make English the official language of the U.S.?

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Texas is gearing up for a fight with the Transportation Security Administration (TSA) over its perverse airport screening tactics. Last week, 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 passengers, and the constitutionality of this invasive technique is dubious.

Providing transportation security is certainly not among the federal government’s enumerated powers. In fact, it’s a function not well-suited to government. 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.

Richard Diamond is a senior editor of The Washington Times and the former spokesman for the U.S. House Select Committee on Homeland Security.

© Copyright 2014 The Washington Times, LLC. Click here for reprint permission.

About the Author

Richard Diamond

Richard Diamond, Managing Editor for Opinion, previously served as Senior Vice President at the Export-Import Bank of the United States, spokesman to Federal Communications Commission Chairman Michael K. Powell and spokesman to House Majority Leader Richard K. Armey and for the House Select Committee on Homeland Security.

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