The TSA “anti-groping” bill
It’s hard to entertain a serious discussion of this bill. It is hard to contemplate that 112 members of the House would sign on to this bill as co-sponsors. I’m almost at a loss for words, except that by now we ought to be used to the idea that this is the worst legislature that the Capitol has seen in forty years and there is no end to the silliness (not to mention the harm) it is willing to perpetrate.
Here is the operative language in the bill:
A person who is a public servant [acting under color of his office or employment] commits an offense if the person:
–while acting under color of the person’s office or employment [he]:
–intentionally subjects another person to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that the actor knows is unlawful;
–intentionally denies or impedes another person in the exercise or enjoyment of any right, privilege, power, or immunity, knowing the actor’s conduct is unlawful; or intentionally subjects another person to sexual harassment; or while acting under color of the person’s office or employment without probable cause to believe the other person committed an offense
– performs a search for the purpose of granting access to a publicly accessible building or form of transportation; and … intentionally, knowingly, or recklessly:
–touches the anus, sexual organ, buttocks, or breast of the other person, including touching through clothing; or … touches the other person in a manner that would be offensive to a reasonable person.
I do not see how this statute can have any force or effect. It is an attempt by the state to create a criminal offense that applies to federal officials carrying out their lawful duties. In any other year, this piece of legislation would be allowed to die peacefully without a hearing. Not this year.
If a federal official thinks that a person should be “patted down” in order to ensure public safety, it is the duty of that official to take all necessary steps to protect the public–and I don’t mean protect persons from being groped. I mean protect them from the kind of calamity that can result from the failure to detect and prevent a threat to the public safety.
If a federal official engages in conduct that is prohibited by federal law or TSA regulations, that person should be prosecuted by federal authorities under the applicable federal laws. An attempt to prosecute under state law can have no force or effect if the official is carrying out his duty according to federal laws and regulations. It violates the supremacy clause of the U.S. Constitution. I know that this is a quaint thought these days, when states rights is all the rage in the Legislature. But the Legislature is playing with fire. If the statute makes it impossible for federal officials to perform their lawful duties the federal government can close airports. I hope it doesn’t come to that, but this attempt to prevent federal officials from doing their lawful duty could have grave consequences for Texas air travel and for the Texas economy.
Tagged: TSA anti-groping bill
South Texan says:
Gov. Rick Perry’s adding the anti-groping bill to the special session’s agenda simply reinforces his anti-Washington agenda that he considers critical to his presidential aspirations and tea party credentials. He has no shame, nor does he accept responsibility for the damage he is doing to Texans.
Perry for President? How sad! More important, how worrisome!
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Governor Toolshed Reply:
June 22nd, 2011 at 12:23 pm
This Governor is pandering, as only he can do, to the evangelicals, the tea party, and the military.
To say his presidential campaign is worrisome is a drastic understatement. A Perry administration would tear at every fiber that holds this country together.
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Fiftycal Reply:
June 22nd, 2011 at 4:43 pm
You meant to say “A Perry win would end the liberals dream of a socialist nirvana”. There, I fixed it for you.
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Dan Reply:
June 23rd, 2011 at 11:17 am
I fly all the time. This is nonsense. People who are outraged by “groping” should just grow up or drive to where they want to go. Give me a break. Only totally ignorant rednecks could get excited about this as an issue in the first place, and only a complete moron would designate this as an emergency worthy of a consitutional battle with the feds.
Governor Toolshed Reply:
June 25th, 2011 at 1:41 am
@Fiftycal,
Sit down bus driver!
Chris says:
Burka, where is the law that says a security agent must sexually passengers without probably cause to think that any crime has taken place?
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Chris Reply:
June 22nd, 2011 at 1:43 am
*sexually assault*
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Harold Reply:
June 22nd, 2011 at 7:02 am
*probable cause*
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Fiftycal Reply:
June 22nd, 2011 at 4:44 pm
So is “random selection” a “probable cause”?
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Governor Toolshed Reply:
June 25th, 2011 at 2:11 am
In an effort to reason with Fiftycal, I am going to speak to him in the mother tongue… All you t-sips take five okay?
@Fiftycal,
Listen up Aggies, I’ve got a little story for ya (whoop!).
It seems that our man Rock (the good Ag) had fallen on hard times Aggies (hssss!)… That’s right Ags, Rock was working for the TSA (hssss!).
Well Aggies, Rock decided that he was going to be the best darn airport security agent that the TSA ever had seen (whoop!!!).
Aggies, Rock devoted himself to the craft of keeping us safe from foreign religious fanaticism as well as domestic malcontents (whoop!!!!).
One day a traveler refused to go through the scanners Aggies (hsss!!!) and Rock had to perform a pat down Ags (hssss!!!)… This even meant that he had to put his mitts on another man’s muffins Aggies (hsssssssssssssssssss!!!!).
But rest assured my fellow Ags, Rock was “asking and telling” and there was no way he was going to let some McVeigh-ish idiot, or some religious whack-job take down America (whoooooooooooooooop!!!!!).
Now Fiftycal, if you just set fire to something I’m sure you will finally understand why the rest of us think pat downs are reasonable. Be careful though (burn bans and all)!
Richard says:
What I find disgusting is that the same Democrats who rightly spoke out against civil rights violations by the Bush administration in the name of national security reversed their positions virtually overnight when Obama moved into the White House. (Dennis Kucinich is one of the few principled congressmen who didn’t change his tune.) I guarantee you that if Bush were president and a Democrat were Governor, you’d have no problem with this bill, Mr. Burka. What partisan nonsense.
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Jed Reply:
June 22nd, 2011 at 9:03 am
i do see partisan nonsense here, somewhere.
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Tim Reply:
June 22nd, 2011 at 9:34 am
No. Most Democrats would still like to see those draconian measures repealed. The reason we opposed them in the first place was because we realized they be almost impossible to remove once enacted because no politician wants to be on record with having removed these laws if another terrorist attack happens.
A lot of people agree with what this bill is trying to do. But it’s the wrong venue. It has to be done at the national level or nowhere.
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Jed Reply:
June 22nd, 2011 at 10:09 am
look, there’s suspension of habeas corpus, unauthorized wiretapping, and people getting jostled at the airport.
which is the bigger threat to our liberty?
if the texas lege really wants to take a stand on federal overreaching, how about offering asylum to everyone in guantanamo? or refusing to recognize federal convictions based on evidence gathered through the patriot act?
or, we could just whinge about someone touching our “organ.”
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Anon Reply:
June 22nd, 2011 at 5:55 pm
Democrats didn’t oppose them in the first place.
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Jed Reply:
June 23rd, 2011 at 8:35 am
speak for yourself.
paulburka Reply:
June 22nd, 2011 at 11:55 am
I want to reply to Richard, above, who seems to think that if Bush were president and a Democrat were governor, I would somehow have a different attitude toward the anti-groping bill. I think it is utter nonsense for two reasons: (1) It violates the supremacy clause of the U.S. Constitution. (2) A whole lot of members of the Legislature think the Tenth Amendment trumps the supremacy clause. It doesn’t.
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stabat mater Reply:
June 22nd, 2011 at 2:56 pm
conversely, if Bush had passed this you wouldn’t hear peep from the Lege.
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Jet lagged international traveler Reply:
June 23rd, 2011 at 5:31 pm
AMEN to that, stabat mater!
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KB Reply:
June 22nd, 2011 at 4:26 pm
It’s not a “civil rights violation.” There is no right to fly, and Texas, as a state, has no right to operating airports.
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international traveler says:
How many Texas House members have a valid passport?
I bet very few!!
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Anonymous Reply:
June 22nd, 2011 at 6:19 am
Good question! Burka, find out how many have valid passports.
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Ben Quick says:
“In any other year, this piece of legislation would be allowed to die”
in normal times we would call this a “piece” of something else and move on. But now with no adults in the building – we will “talk about it”
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Lonestar says:
But Paul, law enforcement officials don’t make their decisions whether to grope (or gawk with those body scanners) based on public safety but on political correctness. How can groping an elderly woman or a CHILD(!) make air travel safer? If law enforcement were allowed to make their screening decisions rationally based on the Known or confirmable patterns of our adversaries, we wouldn’t be in this mess. Instead, to appease PC idealists, all of us must be groped (or peeped at with body scanners) before boarding a plane.
I agree that if passed the statute will be unenforceable under the Supremacy Clause. But as a public statement that the citizens have had a enough of being treated like criminals in order to avoid offending someone (or more precisely, anyone), the statute is a symbolic rejoinder to overreach and irrationality by the federal government.
And no, unaccountable federal bureaucrats will not shut down our airports over this. That would be the truly ridiculous act in this saga.
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James Otis, Jr. says:
Mr. Burrka, with all due respect to your Constitutional Law credentials, the Constitution of the United States was amended over 200 years ago, to mitigate the inherent federal power granted in the Supremacy Clause. The amendment in question is the 10th Amendment. That amendment was targeted at the Supremacy Clause and supercedes the Supremacy Clause.
You can’t just pick and choose which language from the original Constitution you want. If that were the case, we could still justify slavery and that you have to be a 21 year old white male in order to vote.
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Jed Reply:
June 22nd, 2011 at 9:09 am
if the 10th amendment was meant to supercede the supremacy clause, it would say so. if you read it (!!!), it reserves to the states rights that are not already precluded elsewhere in the document and powers that aren’t already granted to the u.s govt. given that the supremacy clause essentially does both these things, it is pretty clear to anyone who can read this far that the 10th amendment has nothing to say about the supremacy clause.
what it was meant to do was protect other rights not already mentioned elsewhere.
like, say, privacy.
try that route, mayhap.
if you dare.
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Cow Droppings Reply:
June 22nd, 2011 at 10:24 am
so you admit there is no right to privacy in the constitution, which is the basis for Roe V Wade? And therefore you agree under the 10th Amendment abortion should be decided on a state by state basis?
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Jed Reply:
June 22nd, 2011 at 10:45 am
no, i suggested privacy as a genuine right not mentioned elsewhere.
in other words, i meant what i typed.
ingenuousness. you should try it.
Cow Droppings Reply:
June 22nd, 2011 at 3:27 pm
“what it was meant to do was protect other rights not already mentioned elsewhere.
like, say, privacy.”
A right not mentioned but intended? Typical liberal re-construction of the Constitution.
You meant what you typed, which apparently meant nothing.
Jed Reply:
June 22nd, 2011 at 3:36 pm
um. read the 9th & 10th amendments.
then come back and apologize.
rights not mentioned but still protected is the whole freaking point of those two amendments. you’d think a gubmint fearer would get that, at least.
moreover, if you read more carefully, you might have noticed that my entire reason for bringing up privacy was as a more promising avenue than is the 4th amendment for the anti-groping bill that you presumably support.
sorry for trying to be helpful. especially given the circumstances.
Cow Droppings Reply:
June 22nd, 2011 at 3:48 pm
ah Jed, always dripping with condescension, smarter than anyone in the room, just can’t suffer fools. The problem with your argument is that rights not mentioned fall to the purview of the states and the individuals under the tenth amendment.
The only way they don’t is with creative interpretation of language in the constitution.
Cow Droppings Reply:
June 22nd, 2011 at 4:01 pm
BTW, as much as we may differ on some of the points above, I agree with you the bill is ridiculous for no other reason is it attempts to regulate a federal agency’s behavior which I believe violates the separation of powers — not the executive, congressional, judicial separation, but federal-state.
Jed Reply:
June 23rd, 2011 at 8:41 am
let’s just put it here, for reference:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”
OR the people. OR.
also, while we’re at it, the 9th:
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
how are my (and the supreme court’s) claims about the existence of a right to privacy held by individuals inconsistent with the plain meaning of this text?
by “creative interpretation” i assume you mean “reading.”
Anon. says:
James Otis, Jr.: with all due respect to your con law credentials, you’re wrong.
The 10th amdt. says any power not given to the federal government is reserved by the states or by the people. But Article 1 § 8 says Congress has the power to regulate interstate commerce.
It’s a debate nearly as old as the constitution itself as to how broad a grant of power the power to regulate interstate commerce is, but seriously, how much more interstate and commercial can you get than the safety of commercial airplanes?
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paulburka Reply:
June 22nd, 2011 at 12:01 pm
Game, set, match.
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Anon. says:
And on the merits: I kind of agree it appears some of these TSA agents go too far. But I also think our foreign policy in Afghanistan right now is misguided. That doesn’t give state legislature the right to start negotiating with various foreign countries for an end to the war.
If you don’t like either policy, call your member of congress or the president. The states don’t have anything to do with it.
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Garyfan says:
As I’ve said here before, there is no right to fly. If you don’t want to submit to a search, take the damned bus.
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hooah! Reply:
June 22nd, 2011 at 8:16 am
But in order to fly, should you have to submit to a procedure that one might argue, would be a criminal offense in another setting?
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Garyfan Reply:
June 22nd, 2011 at 1:48 pm
Does this mean when you are groped by a doctor this is a criminal offense? No, because you agreed to it in exchange for a benefit — a physical examination. When you fly you agree to being groped in exchange for a benefit — a safe flight.
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James Reply:
June 27th, 2011 at 1:47 am
But, I don’t agree to it. The 4th Amendment doesn’t cease to exist because I buy an airline ticket. And how, pray tell, does groping female state legislators and the chairman of the Texas Public Utility Commission get me a “safe light”.
And, if this same doctor gropes a patient when there is no medical need to do so (or explicit consent given) — the doctor goes to jail.
Chris Reply:
June 22nd, 2011 at 9:35 am
You have a right to travel and you have a right to contract, when you put the two together, that is flying. You can say it here until you’re blue in the face. There is indeed a right to fly.
Just because you’re willing to let some minimum wage goon trample on your rights, doesn’t mean the rest of us are. We demand the government protect the rights of its citizens.
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Jed Reply:
June 22nd, 2011 at 10:14 am
is the right to travel guaranteed in the 9th amendment, right there with the right to abortions? i see it is established in case law (saenz), though not explicitly in the constitution. right there with the right to abortions (roe). like how that works? i’m here all week.
in all seriousness, your contract is with the airline. your beef is with the TSA. i fail to see how this argument is … an argument. it seems more like two unrelated factoids.
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Chris Reply:
June 22nd, 2011 at 12:10 pm
The TSA is infringing upon an individual’s right, without due process, without probable cause, without evidence nor suspicion of a crime. That’s the argument.
If the airline was the one imposing the security that would be one thing, though the issue would still exist of making sexual assault a condition of that contract.
Your mention of Roe is a straw man, but to demonstrate the lack of hypocrisy in that argument, Roe recognized a right to privacy and recognized that in the absence of legislation, a fetus was not a person and therefore not guaranteed equal protection. Texas now has statute that recognizes a fetus as a person, so Roe is now an erroneous decision, by it’s own standard.
Anon says:
Team Simpson pulls rabbits out of hats.
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Tea Leaves says:
Lawmakers signed on as co-sponsors because it shows constituents back home that they are doing something to protect them, even though the bill is largely symbolic. It’s re-election time!
The message is simple: I screwed public schools, but I did not let the federal government screw you!
Vote for me.
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2L says:
The usual way to deal with this is a HCR notifying the federal government of the Legislature’s opinion. Making it an actual bill with potential real-world consequences is just a mark of the immaturity of the current crop.
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anita Reply:
June 22nd, 2011 at 9:56 am
Amen. Well said, and welcome to 2L status.
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thebigeasy2000 says:
Whenever there is a catastrophic event like 9-1-1, our nation has always taken extra precatuions to insure the saftey of it’s citizens. In there attempt to keep us safe, the question becomes to what extent is it necessary and prudent in order to protect our individual rights. That will always be debated and given the level of threat to our national security, I would rather be safer that to see the useless loss of life. If we have another event, the question will be before us again.
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Anon says:
It won’t have any force of law and it is mainly symbolic. And I kind of like it.
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anonymouse2 says:
paul –
you’ve seen for years that the federal government passes laws and issues rules that say an existing state law can stand if it is equal to or stronger than the comparable federal law.
it looks like this bill is simply strengthening local oversight of and enforcement against an existing federal law which, as you point out is possible, possibly/probably is being violated.
were this legislation weakening existing federal law, i can see it having problems from a federal perspective. that’s not the case here.
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stabat mater Reply:
June 22nd, 2011 at 2:50 pm
Lol what? it is weakening federal law – the law that says patdowns or other searches that otherwise might be “unreasonable” are authorized to be performed by TSA at airports.
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Buck says:
What amazed me is that only one law officer spoke against the original bill in the Senate committee hearing.
What law officer wants to arrest a TSA agent just for patting a woman’s front shirt pocket?
Go back and watch the Senate committee hearing. The senators sit there like they’re all on Ambien.
Is Alex Jones running the Capitol?
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longleaf says:
“the Legislature is playing with fire …”
I “get” your tone. You have “outed” yourself as “ex”-CIA. Say hello to fellow “ex”-CIA Agent Dewhurst for me. To paraphrase Freud, “Maybe a POLICE STATE really is just a POLICE STATE.”
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Pete Schweddy says:
Speaking of the INTERstate commerce clause, I see no reason why INTRAstate flights should be impacted at all.
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shasta says:
The concept behind the bill is sound. The TSA searches do very little, if anything to prevent a terrorists attack. Thinking otherwise is simply irrational cowardice. It’s also taking resources away from measures that are more likely to prevent an attack and giving us a false sense of security. Eventually, outrage will grow to the point where people stop flying and the market will take care of the problem.
But the idea that the state of Texas has any business doing this just shows how little our lawmakers understand the law.
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Garyfan Reply:
June 22nd, 2011 at 1:52 pm
“irrational cowardice” — as opposed to the rational kind, I suppose.
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John Johnson says:
Oh…the irony. It’s OK to punch on your handheld while driving on a busy highway…action affirmed to be like driving drunk when it comes to fatalities…yet having someone lightly pat your privates for the sake of national security will not be tolerated. Our Gov is a great politician, but suffers from a lack of morality.
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Cow Droppings Reply:
June 22nd, 2011 at 10:27 am
oh give me a break JJ, like passing a law to prevent texting while driving will actually prevent texting while driving. Why don’t we go ahead and pass a law against adultery. I am sure it will stop all the cheating going on.
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Jed Reply:
June 22nd, 2011 at 10:49 am
i think there already is one.
if requiring that potential laws never be broken in order to be legitimate laws is a good basis for whether to pass them or not, i can think of a lot of laws we don’t need.
like, all of them.
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anita Reply:
June 22nd, 2011 at 10:55 am
Slippery slope, CD. We have laws against murder, yet murders still happen. I assume you aren’t advocating for stripping all laws against murder from our codes?
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centexliberal Reply:
June 22nd, 2011 at 2:50 pm
They passed a law against seat belts and now I wear one.
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Cow Droppings Reply:
June 22nd, 2011 at 3:29 pm
yeah, I kind of sound like liberals saying if you outlaw abortions you will end up getting back-alley abortions anyway, so you might as well not pass such a law.
john johnsone Reply:
June 23rd, 2011 at 10:15 pm
Too late in responding, so doubt it you get it. My retort is that I did not like seatbeat laws or the law that keeps private business owners from allowing their customers to smoke in their establishments… something about the employees. Duh…”We smoke here. Employees and patrons enter at your own risk”. The laws against drinking and driving are good. If texting has been proven to cause accidents like liquor does, then there should be a law against it. The drunk has evidence in his body, and the proof, if probable cause is present, it is on the cell phone.
Makes sense to me. Sorry you disagree.
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Hmmmm says:
“If a federal official thinks that a person should be “patted down” in order to ensure public safety, it is the duty of that official to take all necessary steps to protect the public…”
This is exactly the kind of acquiescence that leads to a police state. We compromise our freedoms here and the next thing you know we’ll be getting patted down at train stations and bus stops…oh wait, that’s already happening.
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paulburka Reply:
June 22nd, 2011 at 12:08 pm
“This is exactly the kind of acquiescence that leads to a police state.” Oh, puh-leeze. The hysteria over this bill is incredible. A pat-down to protect public safety is dot a threat to anyone’s freedom. This bill is not serious legislation. It is a proxy for an attack–unwise and unwarranted–against the federal government.
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The House is Not a Home says:
My oh my, when did everyone become Constitutional experts? I guess they are teaching some things in Texas schools.
Has anyone ever actually been groped? Every time I go to the airport, the worst “offense” I’ve seen are people getting a standard frisk. Its much more inconvenient to have to take off shoes, belts, and remove your laptop from your bag than to get frisked.
Does David Simpson even fly?
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Chris Reply:
June 22nd, 2011 at 12:15 pm
Did you not see the interview with PUC Chairman Barry Smitherman and State Rep Barbara Nash ?
http://www.youtube.com/watch?v=AKE98sJpGig
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anon says:
If Perry thinks this is going to play well for him outside of Texas, he’s sadly mistaken. The burden on a Texan running for president in this cycle will be to demonstrate that he or she is not prone to the same foolishness that turned Bush into a caricature. This episode will get lumped in with his loose talk of secession, the notion that he can’t be trusted to ensure the security necessary to protect our country and citizens in a time of international terrorism.
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JUICE says:
Watching Dewhurst, Perry, and Patrick trip over themselves to appeal to the “9-11 was an inside job” crowd would be comical if it didn’t pervade every aspect of the operation of state government now.
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Hazel says:
Yes, David Simpson DOES fly – he just doesn’t use an airplane.
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anita says:
Let’s put this in perspective.
The R’s in the Texas House are concerned about the “civil liberties” of those subjected to screening by federal officials in airports, so much so that they are willing to jeopardize the exclusion of Texas airports from national and international flights.
Yet, the R’s in the Texas House showed no concern whatsoever for the “civil liberties” of Texans who are unjustly convicted and wrongfully held in Texas jails when, on April 21st, they summarily killed Rep. McClendon’s fairly tame effort (HB 115) to create a commission to investigate convictions after exoneration and to prevent wrongful convictions.
Could this be an issue of race and class — those that stand in lines at airports to catch flights tend to be a different demographic than those who occupy our jails. Why the willingness to rally for the “liberties” of those subjected to a moment of federal screening, but not for those who are unjustly convicted in Texas and spending years if not decades behind bars?
The emphasis seems misplaced.
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Rog says:
Well, the terrorists have already won, as has been stated many times.
I’m amazed that the anti-groping bill isn’t seen as being soft on terrorists. Won’t every terrorist be moving to Texas so they don’t have to worry about having to be frisked after something out of the ordinary shows up on the scanner?
Can’t we get Al Quaeda to endorse this?
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The People's Elbow says:
In a tight budget year the amount of money and manpower the AG’s office is going to have to waste defending this legislation is a shame. This law has zero chance of withstanding constitutional scruitny in federal court.
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Jed Reply:
June 22nd, 2011 at 11:51 am
don’t sell the SCOTUS short.
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anita Reply:
June 22nd, 2011 at 11:55 am
The SCOTUS has taken a dim view of the 4th amendment lately. They would really have to twist themselves to be able to conclude that airport screening is impermissive on 4th amendment grounds.
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JohnBernardBooks Reply:
June 22nd, 2011 at 1:36 pm
when did the 4th amendment become a problem for the feds? The FBI just recently issued new rules allowing the search of your trash, w/o a search warrant. You know democrats say “if you’re going to get grouped, you should lay back and enjoy it”.
Jed Reply:
June 22nd, 2011 at 2:56 pm
don’t sell the SCOTUS short, anita.
Blue says:
Paul, what is the problem with passing a law like this for symbolic reasons? Do you really, truly believe that simply because you want to get on a plane a TSA officer should have the right to grab your penis and testicles for any reason he or she desires–remember, no standard of suspicioun is required, not even probable cause–because that is currently what they do. Do you realize that, if selected for a pat down you CANNOT REFUSE IT even if you would rather not fly than submit to the search?
Let the bill pass. Let the Feds sue. Let’s litigate this thing to actually see what regulations (if any) they are operating under (remember, much of the screening protocals are considered to be secrets). Let’s try to scale back the ridiculous power that the TSA currently asserts for itself.
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paulburka Reply:
June 22nd, 2011 at 12:13 pm
Ah yes, they assert the ridiculous power to try to keep air transportation safe.
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Blue Reply:
June 22nd, 2011 at 4:34 pm
Do you realize, paul, that TSA has conducted pat down searches on people gettting OFF OF trains? That they are developing procedures for non-probable cause searches of truck drivers?
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Jed says:
why would the feds need to sue? couldn’t they just shut down the airports? then, texas would have to sue. boy, talk about a dilemma.
incidentally, did you know that if you get singled out for a car search when driving from new mexico into texas that you CANNOT REFUSE IT, even if you would rather just go back to new mexico?
or, if you get stopped at a sobriety checkpoint, you … can’t simply opt to return to the bar.
and coming soon, if you get asked for your papers …
but yeah that airport security thing, yow.
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anita says:
Umm, I don’t think you understand. They don’t need to sue us — the feds could simply pull the certification of our airports because they believe their employees may be subjected to local laws that impact their ability to ensure the security of national and international flight networks.
You also assume that there’s no remedy available now for a person who feels that they have been “groped” by a federal security agent.
If you believe Perry’s B.S. about how the Obama administration is “tegeting” Texas, why would you give them the excuse of shutting down all of our air traffic?
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anita says:
Sorry . . . targeting.
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Richard says:
Anyone who thinks the TSA would actually follow through with its threat to shut down our airports is delusional.
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paulburka says:
It is not the TSA that is doing the threatening. It is the U.S. Department of Justice.
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Blue Reply:
June 22nd, 2011 at 4:31 pm
Napolitano and Holder together don’t have the balls to close down Texas’ airports.
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Jay Stang says:
Everyone is jumping up and down about how this bill violates the Supremacy Clause. The clause says that every law that is made pursuant to the Constitution shall be the supreme law of the land. How can a law that violates the Fourth amendment in such an egregious manner be pursuant to the Constitution?
Y’all are leaving out the important parts!
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anita says:
If the current methods employed by TSA “violates the Fourth amendment in such an egregious manner” then you have your remedy — the federal courthouse is right on 8th Street. That’s your venue — leave the Legislature out of it.
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Jay Stang says:
Interposition and nullification are valid avenues. All the bill does is require TSA agents to abide by the fourth amendment.
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Red Reply:
June 22nd, 2011 at 1:09 pm
Nullification hasn’t been a valid avenue since 1832 when Andrew Jackson smacked South Carolina down hard.
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anita Reply:
June 22nd, 2011 at 1:54 pm
But what about nullifiposition?
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Jed Reply:
June 22nd, 2011 at 2:58 pm
it was still breathing long enough for john c. calhoun to base a constitutional theory on it.
but yeah.
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WURSPH Reply:
June 22nd, 2011 at 8:15 pm
But then we have the nasty fact that the guys given “credit” by Calhoun for coming up with the idea of “nullification”—Thomas Jefferson and James Madison–both said there was no such thing.Madision’s comment was that “The strange doctrines and misconceptions prevailing in that quarter are much to be deplored; and the tendency of them the more to be dreaded, as they are patronized by Statesmen of shining talents, and patriotic reputations.” Going further to state:It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them. You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, vol. 2,1 with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject.
Adding, on “Supremacy”:With respect to the supremacy of the Judicial power on questions occurring in the course of its functions, concerning the boundary of Jurisdiction between the U. S. & individual States, my opinion in favor of it was as the 41 No. of the Federalist shews, of the earliest date; and I have never ceased to think that this supremacy was a vital principle of the Constitution as it is a prominent feature in its text. A supremacy of the Constitution & laws of the Union, without a supremacy in the exposition & execution of them, would be as much a mockery as a scabbard put into the hand of a Soldier without a sword in it. I have never been able to see, that without such a view of the subject the Constitution itself could be the supreme law of the land; or that the uniformity of the Federal Authority throughout the parties to it could be preserved; or that without this uniformity, anarchy & disunion could be prevented.”
Take that John C. Calhoun!
John C. Calhoun Reply:
June 23rd, 2011 at 8:48 am
full citations, please.
minus one half letter grade.
long live the South!
and Dan Patrick.
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anonymous says:
This is a gift for Rick Perry. David Simpson has teed him up a ball that he can hit out of the park. Double win for those two guys.
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Robert Morrow Reply:
June 23rd, 2011 at 2:14 am
Agreed.
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Jay Stang says:
I will take it any way I can get it. I refuse to let my wife and children fly until this is fixed. My son’s diaper is not the TSA’s playground.
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anita Reply:
June 22nd, 2011 at 1:53 pm
See you at the bus station.
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Jed Reply:
June 22nd, 2011 at 2:59 pm
looks like somebody’s household could use a good dose of separation of powers.
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anon says:
Don’t forget nullifiposition and interication, sense we’re making stuff up.
Subsection (a)(1)(B) is especially ridiculous — it basically strips away the ability of a TSA officer to deny a person access to an airport. It places the burden on a TSA officer to prove that he or she is acting “lawfully”.
This is just folly.
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Jay Stang says:
What is wrong with proving they are acting lawfully? The burden is on law enforcement to have probable cause to believe they are not acting lawfully.
What you propose is that we are all regarded as criminals automatically. How does the TSA have the ability to deny an individual access to an airport anyways?
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Red Reply:
June 22nd, 2011 at 1:15 pm
…have you *been* to an airport lately? The big giant screening areas with folks wearing jackets that say “TSA” on the back are quite good at holding up traffic.
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anita Reply:
June 22nd, 2011 at 2:10 pm
Jay, you seem to be advocating for no security whatsoever at airports, unless a peace officer has “probable cause” regarding a specific person. No search, no nothing.
That’s cool — but what do you have to say about the thousands of Americans who have lost their lives at the hands of terrorists using airplanes? The ability of a peace officer to use his or her arrest powers via probable cause were, of course, in place when each and every one of these terrorists boarded the plane that they then used to kill our fellow Americans. It clearly didn’t work.
Can you better explain your position?
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Blue Reply:
June 22nd, 2011 at 4:36 pm
So the only choices are feeling the private parts of 3 year odl girls versus no security, anita?
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Jay Stang says:
I mean, where is the TSA’s authority to deny access?
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anita Reply:
June 22nd, 2011 at 1:52 pm
Jay, you may want to read the letter from all of the United States Attorneys in Texas. It provides direct cites to federal law that grants authority to DOJ and TSA, and outlines their position. In contrast, Rep. Simpson sent a response quoting Sam Houston.
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JohnBernardBooks says:
Homeland security was a good idea until the democrats hijacked it, just like the EPA and every other guv agency. Once the democrats get a little power they use federal agencies/regulations to control the serfs.
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longhorn50 says:
If as you say, this is the worst legislature in 40 years, then David Simpson is the worst legislator in the long storied history of the Texas legislative body. Paul, that really says a lot since we have had some really sorry members.
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WURSPH says:
Sorry, James Otis Jr., but I would much prefer to follow the opinion of James Madison, “The Father of the Constitution” and the primary author of the “Bill of Rights” (the first 10 amendments) as to the meaning of the 10th Amendment than your opinion. In case you don’t know (which is obvious) immediately after the House of Representatives adopted the language of the 10th Amendment Madison added a statement to the official record that, in effect, says that the addition of the 10th Amendment made no difference to the powers of the Congress. In effect, he said, with or without the 10th Amendment what mattered were the powers given to the Congress by the full Constitution stating:
“If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.”
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WURSPH says:
Sure sounds like federal “Supremacy” to me!
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anon-p says:
Burka> “If the statute makes it impossible for federal officials to perform their lawful duties the federal government can close airports.”
Lovely. A giant game of chicken because the Fed won’t do things reasonably.
Is it too much to ask that probable cause be used to provoke a pat-down? Do elderly folk, small children, and people who have never left the country need to be subject to a pat-down absent some other compelling bit of evidence?
How long could airlines stay afloat if DFW and IAH were shut down? How many millions/billions would be lost because those airports were shut down? Is the Federal government really going to risk that over an unfettered ability to perform pat downs on kids and grandparents?
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Ed says:
So….say the law passes and instead of thinking it’s “symbolism” Gov Perry sends state troopers to DFW to monitor TSA agents. (not all that far fetched esp if he is running for President). What happens then? DFW shuts down….or do we have a bus load of Federal Marshals show up to stand between the troopers and the TSA agents? Again – probably not likely how it would play out but not outside the possible. Pass the popcorn, it could start getting fun.
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Anonymous says:
David Simpson, former Mayor of Avinger? Really, he touts that as experience? That place has a population of about 500. Where is Avinger you ask? Well, its between Longview and the 1800′s.
This whole TSA things needs to go away. Its not “groping,” its a pat down. If you don’t like it, don’t fly.
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Everybody Loves Ramen Reply:
June 24th, 2011 at 2:34 pm
“Between Longview and the 1800′s” Priceless.
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Crazy Uncle says:
If I wasn’t crazy, I would think that all of this is nuts on both sides.
It’s all right for the Federal Gov. to be crazy but not the State. The only difference is when the Feds are crazy they are really crazy.
The civil rights acts of the sixties was the shock treatment that brought sanity to the states.
The Vietnam war, Richard Nixon & The left’s reaction to them caused the Federal Government to go insane.
The Obama administration is putting us all in a 1930′s asylum.
But what do I know, I’m the Crazy Uncle in the room.
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655321 says:
It’s disingenuous to describe random, invasive searches as a “lawful duty.”
The groping bill may be the wrong solution, but the TSA is an ineffective works program that creates the illusion of security at the very real expense of liberty.
I guess the 4th Amendment has become just as quaint as the Supremacy Clause.
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Bud Reply:
June 23rd, 2011 at 8:50 am
i heard that!
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Anon. says:
Anyone else appreciating the irony of people who are otherwise “strict constructionists” claiming there is a constitutional right not to be searched when you enter an airport?
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Cincinnatus says:
All of you who claim this is merely a symbolic bill are ignoring the tax dollars that will be wasted if it passes, as local law enforcement officers will be asked to enforce this new law and local prosecutors will be asked to prosecute this new law and federal officials will attack this new law, etc.
If someone is getting improperly felt up by an employee of the TSA, why not file a 1983 action? Oh right, I forgot–plaintiff’s lawyers are bad. We’d rather spend state and federal tax dollars to prosecute defend a silly fight between politicians. What happened to fiscal responsibility this session?
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WURSPH says:
I noticed someone brought up the 9th Amendment (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.) as if it somehow has some meaning in all of this. I, personally, prefer Judge Bork’s opinion of what it means. Bork–who you will remember was the far-right judge “busted” (rejected) by the U.S. Senate for his “strict constructionist” views when he was nominated for the U.S. Supreme Court . The way he was treated by the Senate set off this whole series of major fights over Supreme Court nominees…During his confirmation hearing Bork was asked what he thought of the 9th Amendment…and being a strict constructionist like he is…his answer was that it “is meaningless dicta”.
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Robert Morrow Reply:
June 23rd, 2011 at 12:09 am
Bork was pretty damn good, but he was not right on everything.
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Carly Rose Jackson says:
Thank you Mr. Burka for helping me to cull my RSS reader. I’m unsubscribing from your blog, because ignorantly ignore the 4th Amendment.
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John C. Calhoun Reply:
June 23rd, 2011 at 8:52 am
i like to make sure my kiss-offs are intelligible.
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Vernon Reply:
June 23rd, 2011 at 9:21 am
How do you feel about the no-warrant blood withdrawals that Austin PD now practices?
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Robert Morrow says:
You know what Michael Badnarik says, and he is an expert on the US Constitution as is Ron Paul … Badnarik says that you can take the US Constitution and rip it to shreds or if it never even existed in the first place …
and you still have inalienable … that is inalienable rights given to you by God that no one can take from you. 2 of those are the right to free speech and the right to defend yourself.
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John C. Calhoun says:
and right to contract to an airplane flight free of security.
natural law #3, yo.
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Jet lagged international traveler says:
Is holding a valid passport public record? If not, why not ask all the sponsors of this bill when/if they last left the country? Or do they see Russia from their house?
No one is getting groped anyway. A patdown is not groping. Honestly, what is the TSA supposed to do when a passenger’s underwire bra sets off the alarm?
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bsmith says:
Burka: This is not a Supremacy Clause issue. If it is, please cite to me the law that is trying to supercede? What specific federal statute is it in conflict with?
Further, your post implies that a state law is in conflict with the Supremacy Clause if it subjects a federal agent to state criminal statutes. This is not the case. A person is not provided immunity from state criminal laws just because they are acting as an agent of the federal government. They are still subject to state laws.
Have you even read the most recent version of the bill? Did you see that the bill provides a defense for an actor that performs a “search pursuant to and consistent with an explicit and applicable grant of federal statutory authority that is consistent with the United States Constitution?”
Did you also read Section 3? The portion of the bill that provides that is it only enforceable to the extent that it does not violate the U.S. Constitution.
This bill is about protecting our individual liberties. Since you are quick to cite to the Constitution, have you even read the Fourth Amendment? This bill seeks to stop government agents from abusing their authority under the color of law.
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Jed says:
so … the bill is really just a reminder that we in texas love the us constitution, too?
need a bill for that, do we? only in texas. everywhere else it would be obvious.
should we also install mini-supreme courts at every security checkpoint, to see if the searches being conducted comport with the 4th amendment?
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The House is Not a Home says:
Straus just brought the hammer down down on this tomfoolery.
http://www.statesman.com/blogs/content/shared-gen/blogs/austin/politics/entries/2011/06/24/speaker_calls_antiagressive_pa.html
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anita Reply:
June 24th, 2011 at 10:02 pm
Thank God an adult arrives, finally.
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Jed says:
not an expert on lege procedure, but doesn’t he control the calendar?
and (from the link) did i just read right that the house failed to muster a quorum AGAIN today?
what the hell are those jokers doing? the fact that they can’t even get serious during a special session is just an insult to texas and texans. or is this intentional? what is the move here?
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SARTX64 says:
Bottom line. Losing the 4th amendment to Federal Administrative Agencies must not be allowed. Some people can think in terms of the bigger picture, biut others can’t. Thank God the Texas House is made of men and women who “get it.”
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Jed says:
i assume the “SAR” in your alias stands for “sarcasm?”
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Jeff Crosby says:
Hey commies, it’s time to celebrate! Federal groping will continue in Texas!
Though this victory is not on the level of installing a socialist-nazi-non-Hawaiian-Islamicist in the White House, it’ll just have to do for now.
So what’s next? Drones, my fellow travelers. Let’s call our good friends at ATF/FBI/NSA/NCAA/CIA/FHA and have them assign drones — preferably black ones — to follow around Alex Jones and the like. Think of the fun we’ll have!
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Alex Jones Is Glad 9/11 Occurred says:
“socialist-nazi-non-Hawaiian-Islamicist”
Wow, the mouth breathers/extra chromosome crowd really had to reach on that. Maybe we do need predator drones to follow these types of people around.
People like Jeff Crosby are the reason TSA has to search people at the airport.
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Jeff Crosby Reply:
June 24th, 2011 at 6:20 pm
In the immortal words of Foghorn Leghorn, “It’s a joke son.”
Turn on your satire detector.
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anita Reply:
June 24th, 2011 at 10:12 pm
The world needs more Foghorn Leghorn.
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The House is Not a Home says:
Talk Radio is full of Straus hate today.
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Anonymous says:
New Slogan……..”Fly the Feely Skies”
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Truman Sparks says:
Paul, TSA Pat Downs are not about security. Patting down an elderly person or a child is about government control and conditioning people that their bodies are not their own and that they are part of a collective. This is about social control and whether individuals have rights or the government has rights. The entire Obama agenda has been a full frontal assault against individual liberty and in favor of federal control. For the folks who have been saying we fought a war over the state’s right issue you are right. We also fought one against a monarchy.
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anita says:
That’s quite a rant,Truman.
What about my right to fly without being blown to the heavens by some hack terrorist with exploding shoes? Your “social control” likely means it’s off limits to ask him to suffer the indignity of removing them.
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Anonymous says:
Anita, what about the right of a person of latino origin to be able to walk down the street without having their citizenship questioned?
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James says:
“This is exactly the kind of acquiescence that leads to a police state.” Oh, puh-leeze. The hysteria over this bill is incredible. A pat-down to protect public safety is dot a threat to anyone’s freedom.”
OK Paul, then can a cop stop random people on the street and search them. Well, no. Why not? Well, uh, because it violates the 4th amendment do do searches without probably cause. Can the same cop pull over random cars and search them and argue that agreeing to drive on a public road gives the police the power to do warrantless searches? Nope. That pesky 4th Amendment strikes again!
A cop can’t even demand your NAME, subject to penalty, in Texas law unless they arrest you.
Just imagine all the real crimes we could solve if cops could do warrantless searches or forbid the accused from having lawyers. If public safety is the main goal,then that whole “search warrant thing” and that silly “Miranda” stuff needs to get set aside.
Paul, please explain to the rest of us how groping Rep. Nash and the chairman of the PUC made us all safer? Note that the TSA admitted that they were punishing the PUC head for his “opt out” by going through his luggage one item at a time afterwards.
You cool with that?
Or, Paul , please defend making a sickly 95 year old woman remove her adult diaper for a 45-minute grope-a-thon.
http://www.newsherald.com/news/mother-94767-search-adult.html
Hey, to go back to the civil rights era, was telling some folks they had to ride in the back of the bus something to get “hysterical” about. C’mon, they still got to their destination. Well, to the people who were publicly humiliated — yes it was a VERY big deal! Thank goodness some of them refused to go along with this violation of their rights as citizens.
Us average folks see this as ridiculous. We ask: if this isn’t a violation of the 4th Amendment (and common sense), then what is? And, since the TSA is also looking at taking their show on the road to subways, trains, and bus stations — what happens to the silly “well, then just don’t fly” rebuttal.
I say it again: Me buying a plane ticket doesn’t negate the U.S. Constitution. Terrorists have also blown up subways, trains, night clubs, and hotels. So, to carry your logic forward, would it be Ok for the TSA to search people who buy a subway token, train ticket, pay the cover at a night club, or stay at a hotel?
Please explain to me the difference between a plane ticket and a train ticket?
Since terrorists can literally stike at any time at any place, the only logical course (following your logic) is to allow random searches of anyone at all times in all places.
This issue is serious enough to me that I drove 2,800 miles to Michigan round-trip last year. I refuse to get on an airplane while this insanity is in effect. Nor would I let my young grandson face having his crotch felt up because he wanted to go up north to see his great granddad.
I also feel for the disabled, whose metal in their bodies means an automatic groping. Think about how humiliating this must be for someone to knwo that any time you have to travel that a groping awaits — even if you bring your medical records along to show the TSA.
Meanwhile, the terrorists laugh in their caves as we pay 55,000 bureaucrats to waste our time, cost us billions of dollars, and erode out rights as a free people. Enough!
Either the terrorists have won, or worse, the IDIOTS have won.
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James says:
“What about my right to fly without being blown to the heavens by some hack terrorist with exploding shoes? Your “social control” likely means it’s off limits to ask him to suffer the indignity of removing them.”
Then use dogs that can detect the scent of explosives easily.
Also, please note that a terrorist recently tried to blow up a Saudi prince with a bomb inserted in his rectum. So, are you willing to take the needed steps to secure an airplane against that threat as well?
Drug smugglers routinely enter the nation with cocaine or heroin stashed in their bodies. The same can be done with explosives.
http://israelinsider.net/profiles/blogs/qaeda-tried-to-assassinate
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James says:
“This whole TSA things needs to go away. Its not “groping,” its a pat down. If you don’t like it, don’t fly.”
I must have missed the fine print the in U.S. Constitution in the 4th Amendment that exempted airports. Silly me, I thought it applied everywhere.
Also, since terrorists have blown up trains, subways, discos, and hotels, I guess you also would be cool with the TSA searching anyone who buys a train ticket, subway token, enters a disco, or stays in a hotel. If not, why is a train different?
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Anonymous says:
Burka says: “If a federal official thinks that a person should be ‘patted down’ in order to ensure public safety, it is the duty of that official to take all necessary steps to protect the public… from the kind of calamity that can result from the failure to detect and prevent a threat to the public safety.”
As a 60 year-old woman with an implanted heart defibrillator, I get patted down every time I fly. After I went through a nude scanner at an airport, they patted me down anyway. So what you’re seriously saying is that they need to closely inspect my body to insure public safety. Shame on you. You know better.
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paulburka Reply:
June 27th, 2011 at 4:39 pm
I would prefer that TSA exercise more common sense in its use of pat-downs, but I still want them to protect public safety first, last, and always.
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anon-p says:
Recently heard: TSA pat-down procedure has now been named “gate rape” by its detractors.
Labels can be vicious.
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