Texas Drops Anti-TSA Groping Bill After Feds Threaten To Essentially Make Texas A No-Fly Zone

May 25, 2011 24 Comments ›› Pat Dollard

From The Lone Star Report:

Correspondence from U.S. Attorney John E. Murphy warned of the potential consequences — including the cancelation of flights to and from Texas — if the anti-TSA-groping bill passes.

“I voted for it [HB 1937], and I know people have concerns … but I get concerned when I see a letter from the Department of Justice” warning of the consequences, said Sen. Juan “Chuy” Hinojosa (D-McAllen) this evening as Senators debated the bill.

“If HR [sic] 1937 were enacted, the federal government would likely seek an emergency stay of the statute,” the letter read, on U.S. Department of Justice, Western District of Texas, stationery. “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.

“We urge that you consider the ramifications of this bill before casting your vote,” the letter concluded.

Bill author Rep. David Simpson’s (R-Longview) staff said this amounts to the Department of Justice having “thrown down the gauntlet.”

“Either Texas backs off and continues to let government employees fondle innocent women, children and men as a condition of travel,” the staff wrote, “or the TSA [Transportation Safety Administration] has the authority to cancel flights or series of flights.

Update: (9:32 p.m.) Senate sponsor Dan Patrick (R-Houston) pulled down HB 1937. But he didn’t pull it until after some firey rhetoric about the principles of the bill, as well as allegations that TSA representatives were “lobbying” the Texas Senate today. “I will pull HB 1937 down, but I will stand for Liberty in the state of Texas,” Patrick said.

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Full Text of DOJ letter to Texas lawmakers:

May 24, 2011

[On U.S. Department of Justice, Western District of Texas, stationery. Addressed to Speaker Joe Straus, Dewhurst, the House Clerk and the Senate Secretary]

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, Northern, 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 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 granting access to a publicly accessible building or form of transportation. That provision would thus criminalize searches that are required under federal regulations in order to ensure the safety of the American public. The legislation also makes it a crime for a public servant, as defined by the bill, to deny or impede another person in the exercise or enjoyment of any right or privilege, knowing that the public servant’s conduct is unlawful. As a result, it appears the intent of the bill is to preclude a TSO 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.

The effect of this bill, if enacted, would be to interfere directly with the Transportation Security Administration’s (“TSA”) responsibility for civil aviation security. 49 U.S.C. §114(d); 6 U.S.C. §202(1). Congress has directed the Administrator of TSA to take “necessary actions to improve domestic air transportation security,” 49 U.S.C. §44904(e), and directed him to “prescribe regulations to protect passengers and property on an aircraft … against an act of criminal violence or aircraft piracy.” ID. §44903(b). Congress has directed TSA to provide for “the screening of all passengers and property … before boarding,” in order to ensure that no passenger is unlawfully carrying a dangerous weapon, explosive, or other destructive substance. Id. §44901(a), §44901(a), §114(e). If the Administrator determines that “a particular threat cannot be addressed in a way adequate to ensure … the safety of passengers and crew of a particular flight, he “shall cancel the flight or series of flights.” Id. §44905(b). 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.

If HR [sic] 1937 were enacted, 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.

We urge that you consider the ramifications of this bill before casting your vote.

Very truly yours,

Also, from the Lone Star Report today, in follow-up, answering why the bill was pulled:

As the anti-TSA-groping bill was debated on the Senate floor today, Sen. Dan Patrick (R-Houston) learned he no longer had the 21 votes necessary to pass the bill.

He thought he had 30.

The reason for the drop in support, Patrick said, was Lt. Gov. David Dewhurst’s intervention — “peeling off the votes,” he called it. However, a spokesman for Dewhurst denied that was the case.

“There’s no one against this bill except for the federal government and our Lieutenant Governor, apparently,” Patrick, the bill’s Senate sponsor, said.

Earlier this evening, the Texas Senate briefly took up HB 1937, a bill which would criminalize the advanced pat-down procedures used by the Transportation Safety Administration on some airline travelers.

Mike Walz, communications director for Dewhurst, said a number of Senators approached the dais on the Senate floor to inquire about a letter received from Western District of Texas U.S. Attorney John E. Murphy. Dewhurst did not persuade Senators to reject the bill, Walz said, but was responding to their concerns.

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