I’m really tired of hearing how sincere David Simpson is, how strong his principles are, how concerned he is about protecting the privacy of his family and all Americans from the sex-starved fingers of federal security officials. Can’t we just acknowledge that, however sincere he is, his bill to prevent pat-downs is crazy? Has it occurred to him that air travel will come to a halt in this state if his bill passes? Does he really think that he can pass a bill that compels federal employees to risk violating a Texas criminal law? He may, but John E. Murphy begs to differ. Mr. Murphy is United States Attorney for the Western District from Texas, and upon learning of Simpson’s bill, and (presumably), having a good laugh about it, wrote Straus, Dewhurst, and the chief administrative officials of the House and Senate the following letter: Dear Leaders: I write with regard to HB 1937, which I understand will imminently be presented to the Texas Senate for a vote. This office, as well as the Southern, Norther, and Eastern District of Texas United States Attorneys, would like to advise you of the significant legal and practical problems that will be created if the bill becomes law. As you are no doubt aware, the bill makes it a crime for a federal Transportation Security Official (“TSO”) to perform the security screening that he or she is authorized and required by federal law to perform. The proposed legislation would make it unlawful for a federal agent such as a TSO to perform certain specified searches for the purpose of gaining access to a publicly accessible building or form of transportation. That provision would this criminalize searches that are required under federal regulations in order to ensure the safety of the American public…. Murphy’s letter continues: HB 1937 would conflict directly with federal law. The practical import of the bill is that it would threaten criminal prosecution of Transportation Security Administration personnel who carry out the security procedures required under federal statutes and TSA regulations passed to implement those statutes. Those officials cannot be put to the choice of risking criminal prosecution or carrying out their federal duties. 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. [emphasis is mine] Finally, there is this dire warning: If HB 1937 were enacted, the federal government would likely seem an emergency stay of the statute. Unless or until such a stay were granted, TSA would likely be required to cancel any flight or series of flights for which it would not ensure the safety of passengers and crew. I note with some dismay that Dan Patrick is the Senate sponsor of this legislation. This is not the bill to grab headlines over. It just reveals how far the Republican rank and file to support offbeat bills that shake an imaginary fist at the federal government, even if they threaten public safety.
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