November 9, 2011
In the Lone Star State there’s a bravado and pride of state’s rights that is often boiled down to the phrase “Don’t mess with Texas.” But in the eyes of Texas State Senator Dan Patrick, that’s exactly what the TSA is doing, and he wants federal TSA agents to be held responsible for “intrusive touching.” However, the TSA responded with a letter threatening to sue the state of Texas should Patrick’s legislation become law.
Patrick’s House Bill 1937 would prohibit “intrusive touching” at airports and other public building and was designed to prevent security screeners from touching the genitals and other private parts when people go through checkpoints. Patrick told reporters that he initially had 30 votes for the bill, but during debate on the Senate floor, that number steadily decreased.
A letter from US Attorney John Murphy warned that the legislation would “criminalize searches that are required under federal regulations” and would “conflict directly with federal law.” The fact of the matter is that airports fall squarely under the US Constitution’s interstate commerce clause and the federal government has the authority to regulate them. With federal law trumping state law under the supremacy clause, a suit brought against Texas would undoubtedly fall on the side of the federal government.
While Patrick’s bill to keep the TSA’s hands off of Texans’ privates never had a chance, both in the current US code and in a climate of being seen as weak on homeland security, the federal government effectively messed with a state’s legislative process. It also buried the chance for the public to have on record a federal defense of why the TSA should be able to touch people’s genitals.