The TSA "anti-groping" bill
Wed June 22, 2011 12:57 am

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.

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