A Federal No-Fly Zone Over Texas?

The Department of Justice threatens to shutdown air travel in the Lone Star State.

Proving that the extortionist tendencies of the Obama administration aren't limited to the NLRB's suit against Boeing, the Department of Justice threatened the state of Texas with a complete suspension of air travel in and out of that state if its Senate approved HB 1937, a bill which would have banned "intrusive touching of persons seeking access to public buildings and transportation." The penalty for doing so would have been a $4,000 fine and one year in jail. Authored by Representative David Simpson (R-Longview), and passed in the House by a vote of 138-0, HB 1937 was the first bill in the country designed to derail the TSA’s intimate pat-downs absent the probable cause guaranteed by the Fourth Amendment. As of now, the bill is dead.

letter signed by U.S. District Attorney for Western Texas, John E. Murphy, is the epitome of coercive innuendo. Sent to House Speaker Joe Straus, Lieutenant Governor David Dewhurst, and the House Clerk and the Senate Secretary, the letter warned these officials of the "significant legal and practical problems that will be created if the bill becomes law," noting that "the intent of the bill is to preclude a [federal transportation official] from turning away from the secure area of an airport someone who otherwise would have been subjected to a pat down as a condition of entry." Murphy then warned Texans that if the Senate chose to enact the bill, "the federal government would likely seek 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 could not ensure the safety of passengers and crew."

Senate sponsor Dan Patrick (R-Houston) was undeterred. Initially believing he had the votes to pass the bill, he pressed on, angrily noting that “I don’t cave in to heavy handed threats by the federal government.” Lieutenant Governor Dewhurst allowed the legislation to proceed to the floor of the Senate for debate. At that point, support wavered, and Patrick withdrew the bill.

One of the senators who withdrew his support was Juan "Chuy" Hinojosa (D-McAllen), who had voted in favor of the bill in committee. Mr. Hinojosa said that while he agreed with Patrick on principle he couldn't vote for a measure that supersedes federal law. “The bill makes it a crime for a [federal TSA employee]…to perform a federal screening that he or she is required by federal law to perform,” he said. Another dissenter, Sen. John Whitmire (D-Houston), concurred. "I would hate for 181 members of the legislature to think that they can override the concerns of the TSA officials. In fact, I know state law cannot override federal measures," he said.

Yet Sen. Patrick blamed the failure on fellow Republican Dewhurst. “When you stand on the Senate floor and the president of the Senate calls the bill up, he’s not supposed to be working against the bill while you’re debating it,” Patrick fumed. “This was a case of the federal government bullying Texas, and apparently they bullied the lieutenant governor.” In a column for the Ne Tarrant Tea Party website, the Senator elaborated: "I had 30 of 31 Senators in support in the morning, but the Lt Gov waited until late in the afternoon for a letter from TSA that threatened Texas. He them (sic) called our bill up around 10 p.m. and while I was on the floor debating the bill he was working to kill the bill according to Senators who talked with me later. This is a time to stand up for our liberty and freedom and not be bullied by the feds. Apparently the Lt. Gov was bullied...[and] caved to the feds' threats."

Dewhurst spokesman Mike Walz disputed that assessment. "That's completely inaccurate," he said, noting that while Hinojosa was speaking, another senator, kirk Watson (D-Austin), approached the Lieutenant Governor with a list of 12 Senators who had changed their minds after becoming aware of the DOJ's intentions to close airports or cancel flights. Walz said Dewhurst was still willing to bring the bill to the floor in spite of the letter, believing the senate would pass it regardless.

Patrick wasn't buying it. After admitting legislators changing their minds "happens sometimes," he reiterated that he had far more votes than the 21 necessary to pass the legislation. "It sometimes happens when you have 21, but not when you have [30]," Patrick said, adding that Dewhurst should have "just told me" and not bothered to bring the bill up at all.

Speaking with Capitol Press Corps members on the Senate floor, Patrick said it wasn't just the threatening letter which swayed Dewhurst. "Two TSA people" contacted the senator earlier in the day, he revealed. "They told me if we pass this bill, this could close down all the airports in Texas," he said, also criticizing their last minute efforts to kill the legislation. "They've had this entire session to speak out on this issue, and we haven't heard from the federal government," he added. Texas newspaper the Star-Telegram disputed that account, saying the TSA had "actively campaigned against the measure for weeks."

House sponsor Simpson noted in a press release on Thursday that "94 House members from both parties coauthored the bill, and the Senate has registered both a Republican and a Democrat as sponsors." Simpson went on to dispute the federal government's contention that the law, if enacted, would have violated the Supremacy Clause of the United States Constitution, which posits that federal law supersedes state law if there is a conflict between the two. Simpson disputed that finding. "The bill clearly states that an agent is exempt from prosecution as long as a constitutionally sanctioned federal law directs them to perform the invasive, indecent groping searches-including touching breasts, sexual organs and buttocks," he said. He then honed in on the heart of the dispute. "Instead of threatening to shut down flights in Texas, why doesn’t the TSA just show us their statutory authority to grope or ogle our private parts?" he asked.

That sentiment was echoed by Michael Boldin of the Tenth Amendment Center who contends the TSA is "lying" with regard to the Supremacy Clause, noting that while federal law does trump state law when the two are in conflict, federal law must be “in pursuance of” the Constitution in order to be valid. Boldin further cites the Virginia Resolution of 1798, in which the states, when faced with "palpable and alarming infractions of the Constitution" by the federal government "are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them."

Regarding the over-reach of the TSA, Texas is not alone. On April 12, 2011, the Alaska state legislature sent a letter to the Senate Committee on Homeland Security and Governmental Affairs requesting an oversight hearing in Alaska on the "TSA's current practice of conducting pat-down searches and other security procedures on airline passengers." The letter was engendered by Rep. Sharon Cissna's (D-Anchorage) personal experience with the TSA. Cissna, a breast cancer survivor, objected to what she believed to be an overly invasive search when TSA screeners in Seattle insisted on examining the area where an electronic body scan revealed her mastectomy scars. Cissna refused and took a boat to Juneau instead.

One suspects that, if more of the political class were subjected to these procedures -- and to a significant extent they are not -- such people might be inclined to reconsider TSA security procedures. Especially if they were forced to watch those procedures inflicted on their children, just as they were other people's children here, here, and here.

As for the Lone Star state, the motto "don't mess with Texas" rings a bit hollow right now. Just as hollow as U.S. Attorney John E. Murphy's threat to cancel thousands of flights grounding hundreds of thousands of passengers, which would undoubtedly spawn numerous lawsuits from airline companies and anyone else affected. The Texas legislature ends its current session on May 30th. As of now they have no intention of revisiting HB 1937. In the age of Obama, federal thuggery has never been so easy.

Arnold Ahlert is a contributing columnist to the conservative website JewishWorldReview.com.