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Texas Lawmakers Attempt to Ban TSA Full Body Scanners

A posse of Lone State lawmakers has a message for the TSA: Don't mess with Texas.

Republican State Representative David Simpson has introduced two bills targetting the TSA. Here are the highlights:

HB 1938

...(b) An airport operator may not allow body imaging scanning equipment to be installed or operated in any airport in this state.
(c) An airport operator commits an offense if the operator fails to comply with Subsection (b).
(d) An airport operator who commits an offense under Subsection (c) is subject to a civil penalty in an amount not to exceed $1,000 for each day of the violation...

HB 1937

...(3) as part of a search performed to grant access to a publicly accessible building or form of transportation, intentionally, knowingly, or recklessly:
(A) searches another person without probable cause to believe the person committed an offense; and
(B) touches the anus, sexual organ, or breasts of the other person, including touching through clothing, or touches the other person in a manner that would be offensive to a reasonable person.
(f) …. An offense under Subsection (a)(3) is a state jail felony...

Essentialy, Mr. Simpson wants to ban full body scanners and enhanced pat-downs. These are laudable goals.

While I applaud Mr. Simpson's effort to curb the TSA, I must confess that his efforts are misguided. Under current jurisprudence, Congress has the right to regulate all aspects of interstate commerce (transportation falls into that category). Furthermore, the Supremacy Clause (ar. IV, §2) in the Constitution stipulates that when federal and state law are at odds, the federal government wins out. If the bills above became law and I were a judge deciding their legality, I would be forced to throw out both of them.

In addition to not making economic sense or providing better security, I maintain that the TSA's full body scanners and groping searches are violations of the Fourth Amendment. That should be the avenue of attack against the TSA, not through state law restricting an agency that is tasked with providing for the common defense, a primary role of the federal government.

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Comments

#1
Jim March 8, 2011 at 06:41 pm

This has nothing to do with the law or the TSA. It has to do with Texas politics, pure and simple.

No doubt politics plays a big role in this, but I think Mr. Simpson is also against full body scanners. Even with mixed motives, I appreciate any public officials willing to voice their opposition to the TSA.

#3
Michael March 8, 2011 at 09:12 pm

I applaud any attempt to get rid of the scanners and enhanced pat downs. I always refuse the body scan - primarily because every time I've been in one I end up getting the pat down anyway. Why not just cut to the chase.

#4
Chris March 9, 2011 at 06:27 am

Couldn't the proposed law prohibit the use of full body scanners and enhanced patdowns for intrastate air travel though? Just curious...

#5
Michael D March 9, 2011 at 08:38 am

Law and rationality are in no way related to these discussions or Texas politics.

@Michael D: Can you elaborate?

#7
Matt March 9, 2011 at 05:06 pm

@Chris, in short no. These cases are all useful:

http://en.wikipedia.org/wiki/Wickard_v._Filburn

http://en.wikipedia.org/wiki/Heart_of_Atlanta_Motel_v._United_States

http://en.wikipedia.org/wiki/Gonzales_v._Raich

Also, what is "intrastate air travel"? Let's say a Southwest flight (Texas company) flies from Dallas to Houston. All the crew is from Texas, and so are the passengers. None of the passngers are connecting out of state. Change any of those variables and it's arguably interstate commerce. And that's not including the fact that the aircraft itself was not built in Texas, or that one of the passengers may have bough their ticket on-line while on vacation in Oklahoma, or that Southwest also flies to airports not in Texas, etc., etc.

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