Proposed TX law would criminalize TSA screening procedures

A Republican Texas legislator has introduced a bill that would make the TSA's grope-and-fondle secondary search into a felony, and would also criminalize installing and using a pornoscanner:
HB 1937 includes the following:

(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.

The Tenth Amendment Center adds, "the Texas legislature stands on solid ground. Local governments control airports and no enumerated power in the Constitution gives the federal government the authority to regulate them. Under the Tenth Amendment, airport operation falls under state jurisdiction."

Texas Legislation Proposes Felony Charges for TSA Agents (Thanks, Anulla!)


  1. Texas is actually proposing legislature that could arguably hamper national security in favor of personal privacy and dignity?

    Pigs are flying somewhere.

  2. Wow, for once I find myself agreeing with the States-rights, anything-not-explicitly-written-in-the-constitution-is-illegal ‘constitutional scholars’. Is this an early sign of the 2012 end of days?

  3. Isn’t air transportation pretty much unarguably interstate commerce? Especially since security in the sterile areas around the country is only as good as the weakest link, the individual airport security at the airport the travelers come from. All the FAA has to do is say that no planes can fly if the security isn’t to TSA standards. State’s right issue over.

    As much as I’m for the a stand down from totalitarian-style security theater, I can’t say I’m impressed by the “Tenth Amendment Center’s” confidence.

    1. The FAA and all the related airlines have a lot more to lose from grounded planes than a state does, or so I would think.

    2. The feds would be more subtle than that. A simple, “You like all the federal monies that help you keep that airport open? All those sweet, sweet Homeland Security dollars?” Consider interstate highways and speed limits–states that didn’t follow along got their fed highway money held back.

      1. Yes, I suppose you are right. I don’t think the “Tenth Amendment Center” has really thought this through.

        The question for me is should I support this impotent grand standing or not? It brings up an issue I care about, but it also seems like a stupid bill by stupid people. Sigh…

    3. This is the commerce clause in it’s entirety:

      Article I, Section 8, Clause 3:
      “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”

      So, yes, the commerce clause allows the government to apply some degree of regulation to interstate (or foreign) commerce. And the part where they argue, “the Texas legislature stands on solid ground… airport operation falls under state jurisdiction” may not work.

      However, to use the commerce clause to violate provisions in the Bill of Rights is beyond the scope of the clause (or at least, the framer’s intentions, maybe not our current courts).

      Our inalienable rights are NOT commerce. They can not be regulated by this clause.

      “The meaning of the word “commerce” is a source of much of the controversy. The Constitution does not explicitly define the word. Some argue that it refers simply to trade or exchange, while others claim that the founders intended to describe more broadly commercial and social intercourse between citizens of different states. Thus, the interpretation of “commerce” affects the appropriate dividing line between federal and state power.”

      Can you explain how these otherwise unconstitutional strip searches are either “trade or exchange” or “commercial and social intercourse between citizens of different states”? It seems to me, that the searches are far outside the scope of the “commerce”. And that if Congress wants the actions of the TSA to be legal, they’ll have to argue for a national security exception to the Constitution rather than merely invoke the commerce clause.

      Because in this case, the government is not merely regulating the commerce of airlines (ticket prices, fees, expenditures etc…) It is requiring all airlines to allow the federal government to violate the civil rights of their passengers without exception.

      I would argue that this is a gross perversion of the commerce clause that is tantamount to a police state because it is capable of subverting any or all of our right/liberties. If you make the word “commerce” untenably vague then there is no clear limit to it’s application.

      For example, would you argue that the Congress can censor anything on the internet that has some (however minuscule) effect on commerce?

      Would you argue that Homeland Security has the authority to do strip searches without a warrant or probable cause on anyone crossing into another state on a Greyhound bus or if they are a commercial trucker?

      Would you argue that to protect a newspaper in one state, Congress can censor a newspaper in another, if they compete in the same market?

      If I cross a state line in my own privately owned car, but I’m traveling on a business trip, do I still have inalienable rights?

      Can Congress define non-commercial sexual intercourse between citizens of different states as “social intercourse between citizens of different states” and thus regulate it? Do you see how absurd this can get?

      It seems that by your logic, in the name of interstate “commerce”, once I buy an airline ticket I could potentially give up ALL my civil rights/liberties. I could lose the right to speech, to due process, equal treatment under the law – just as easily as we’ve lost the right not to be strip searched without a warrant or probable cause. Is there anything in your interpretation of the commerce clause to prevent this? Where are the limits of it’s application?

  4. Instead of criminalizing the act of the touching (of which the TSA agents don’t exactly have a choice), how about charging those who came up with this asinine policy instead?

  5. Doesn’t the commerce clause of the Constitution permit Congress to regulate commerce between the states? They used that argument to write civil rights nondiscrimination laws by saying that houses of public accommodations (restaurants, hotels, etc) were frequently on interstate highways, used for interstate commerce. Seems like the same type of argement here.

  6. Extra-large popcorn, please. Butter? Oh, yes indeedy. And a Dublin Dr Pepper.

    Can’t wait for this show to start!

  7. It maybe the right thing to do (even if, as Skep points out, it might be meaningless), but they are probably just doing it so they can stick it to that totalitarian-nazi-socialist-muslim-terrorist-anchor-baby-Kenyan-Anticolonialist, Barack HUSSEIN Obama. They probably don’t care that the 4th amendment is being violated, because they probably get a pass. It’s just more political theatre to make the other side of the aisle look bad…

    1. Audemus jura nostra defendere is the state motto of Alabama, not Texas. But I guess you could say that it’s the unofficial motto of all supporters of “states’ rights”. (And while I would gladly embrace and celebrate my home state’s motto if it were meant to refer to individual rights, I must concede that, at least when it was officially adopted as the state motto in the early 20th century, it was specifically referring to the rights of the state to deprive its non-white citizens of their individual rights. *sigh*)

    1. That sound… the sound of 1000 Boinger heads exploding.

      You’re a perfect example of showing what conservatives will never understand. There are people that can actually handle complexity and nuance.

      [ pop ]

      That was the sound of TSE‘s tiny skull “exploding”.

  8. I’d also like to see the TSA put in its place, but this won’t get very far. Texas annually accepts millions of dollars in public airport development funds from the FAA (the money comes from aviation fuel taxes and other aviation-related fees). If local authorities wish to assert control over their airports in a fashion that the FAA finds unacceptable, the FAA notifies them that they are allowed to do so as soon as they pay back ALL of the development funds that they have accepted over the years, with interest. For example, Chicago was forced to repay millions of dollars to the FAA for closing Meigs Field…

  9. Oh, those wacky Texans!

    Between interstate commerce and the FAA I doubt he has a leg to stand on. All the FAA has to do is say, “Fine. No commercial flights out of Texas may fly in FAA controlled air space or land at any US airport outside of Texas”.

  10. I’m with Skep, I think that the Federal government likely has the power to regulate airport security under their Commerce clause power.

    But, this bill is not just an empty gesture. I disagree with the Katz 4th Amdt “expectation of privacy” test, but it is what courts apply. The “objective prong” of the test asks whether “society is prepared to recognize as reasonable” a person’s expectation of privacy. In essence this is a public policy veto of a sincerely held belief that a given action is private. Courts look to what “society” finds “reasonable.” The more state legislatures that pass these laws, the easier it is to make the argument that “Society” does not consider the the porno-scanners reasonable searches.

    Further, we have seen that DHS is interested in deploying the scanners in non-airport settings. The commerce clause rationale may break down in such a setting, and thus the states might have the power to effectively outlaw their use.

  11. Uh. It’s already a felony. The TSA has no constitutional authority to search you without a court order. If they do so without your consent, then that’s felony assault. Just because nobody is prosecuting the offenders doesn’t mean they’re not committing a crime that’s already on the books.

  12. Also, it being the fact that it is the federal government that regulates interstate commerce, which would by extension include interstate aviation, there is no way Texans who refuse to be searched/x-rayed/whatever should have any expectation of being allowed to fly on an interstate carrier.

    Not a problem, really. Texans get to stay in Texas and practice their very special brand of self-inflicted isolationism.

    I can live with that.

  13. This bill isn’t going anywhere. It won’t ever become a Tenth Amendment Issue or non-issue, because it will never be voted through or signed into law. State and federal legislatures are full of bills like this. They’re just grandstanding.

    Nay, I say. NAY!

  14. I’m a Texan. Yeah, yeah, I know…

    Please realize that at our state capitol, there are metal detectors at the entrances. All must pass through them, except certain individuals – those with concealed carry permits. Yep. This is the thinking of the Republicans in Texas. You get a free pass if you carry a gun. If you don’t, you aren’t trusted.

    There is also a bill to allow guns on college campuses. Needless to say, college administrators are very unhappy about it. It will pass, and it will be signed into law.

    Near as I can tell, if a lot of Texas legislators had their way, there wouldn’t be any x-rays or metal detectors or anything of the sort at airports. We’d all have guns and would police the skies ourselves as citizen protectors.

    1. “Near as I can tell, if a lot of Texas legislators had their way, there wouldn’t be any x-rays or metal detectors or anything of the sort at airports. We’d all have guns and would police the skies ourselves as citizen protectors.”

      That… that sounds really nice.

  15. ..a Texan rolling his eyes..

    I know what abortion law just got passed here under “emergency” considerations by Slick Rick Perry..

    And this? Pshaw.

  16. Does this mean people will finally stop whining?? And using the profoundly stupid phrase, ‘pornoscanner?’ I hope so.

  17. Stop and think about what it means that:

    (a) We have a need for such laws to prevent/prosecute sexual assaults by security personnel,


    (b) We know that such a bill has next to no chance of being made law.

    The US has no moral right to use the word ‘freedom’ anymore.

  18. This… is a cage match worth watching. I wonder if any other states will side with Texas?

  19. FYI: A 5-second glance at the Tenth Amendment Center’s website indicates that they believe that states, and even local sheriffs, can declare invalid pretty much ANY federal law they don’t like. This is the spurious legal doctrine known as “nullification”.

    They also say that they consider all governments to be “socialist” (and in their book, that’s definitely a very bad thing).

  20. If you define “fondling my grandmother” as commerce, how is that different than calling her a whore?

  21. While I have no love for the TSA, as I understand constitutional law, the Supremacy Clause (article VI, paragraph 2) would seem to invalidate the TX state law: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

  22. I don’t think any laws or constitutional rights are being violated by the TSA. I hate to say it, but it is my opinion.

    I disaprove of what the TSA does but I have a choice. I do not consent to any scans, searches, gropes, molestation, requirement for ID or any other invasion of my privacy. So I do not fly.

    The Texas law, even if passed will only accomplish one thing. If I do not want to subject myself to TSA groping I can leave.

    It will be impossible to prove a case to prosecute once consent is given. If you want to fly, you will consent.

    As long as people continue to consent, nothing will change. So, nothing will change. People are not going to quit flying.

    If enough people did quit flying, things would change. Airlines would be at risk for failure. It’s not gonna happen. Americans are spoiled and would rather complain and hope someone else does something about it.

    Again, The TSA has done nothing wrong if you consent to a groping.

    1. Is flying a right?

      Well, that’s tricky. Freedom of mobility is a right. Specifically the “right of free ingress into other States, and egress from them.” But it’s gets murky:

      Please keep in mind, that regardless of consent, the TSA now claims the authority to refuse anyone the right to fly based on a secret no-fly list. Consent is not the issue.

      Also keep in mind that we are not consenting to private companies but to the TSA. That is to say that the TSA will not allow any private airline to offer service without searches.

      By this logic, the government could require everyone to “consent” to a strip search in order to cross state lines. Your logic would be that, if you don’t want to consent then don’t cross state lines. But then that would violate the “right of free ingress into other States, and egress from them.”

      So the argument I always hear is that the TSA is not restricting mobility, because people can find alternative methods of travel. Isn’t this a bit absurd? Doesn’t this violate the intent of freedom of mobility? It would allow the government to force citizenry to “consent” to the abdication of their constitutional rights in order to move across state borders, IF there is any conceivable alternative form of transportation.

      How extreme is this logic? It forced Rep. Sharon Cissna of Alaska to travel by sea rather than “consent” to allow the TSA to fondle her mastectomy scars. That’s fine, right? She traveled by sea. But what would prohibit the government from applying searches to ferries, buses, trains etc…? If there is even a single route that would permit travel, regardless if it added days to your journey or cost you thousand of dollars more, regardless if you lose an employment opportunity because of the transport time, regardless if this meant you could not receive medical treatment in another state due to the transport time, then that would be legal?

      I’m sorry. I don’t buy it. Sure, there’s a twisted logic to it, in that mobility is not impossible. But can anyone argue that it has not placed an undue burden on mobility? We don’t allow the government to have a “chilling effect” on free speech, even though it would not make speech impossible. We realize that the government should not suppress our freedoms even if they are still allowed in some capacity. Placing barriers in front of constitutional rights is a surefire way to erode them. Freedom of mobility means the freedom to travel by foot, car, plane, or boat WITHOUT the forced “consent” to abandon all civil liberties.

      If people want to be strip searched in order to feel safer, then let them do it through a private airline, not the TSA, and let the rest of us fly with competitors who won’t strip search us.

      If the threat of using airplanes as missile is so severe that it requires us to abandon civil rights, then why not allow mandatory full vehicle and strip searches at drunk driving checkpoints? Or allow the police to stop and strip search anyone without a warrant or probable cause? Or place GPS devices on everyone ID card? Wouldn’t these measure also save lives?

      If we allow freedom of mobility to be eroded by national security concerns we are heading into a world where any right can be violate for vague security concerns. If the government can tell you not to fly (without a reason), why couldn’t they tell you to stay at home?

      This is not hyperbole, this actually exists in the UK:

      1. I don’t disagree with your post, however;

        Every person that boarded a public flight in 2010 consented to a search. Those that did not consent, did not fly.

        I have not heard of one instance of a person in the US that refused a search, was not permited to fly, that filed a suit for the restriction.

        The proposed Texas law, or simular laws, will not have teeth. No one needs probable cause for a search if they have consent.

        My point is, as long as people continue to give consent to search in order to fly or enter a government building, nothing will change. While some feel it’s fine for their safety, many do not. 99.9% that do not will give consent anyway or find an alternate route. This will change nothing.

        I would love to go to the courthouse with speeding ticket in hand for hearing, refuse search and sue for not being allowed due process. Same goes for flying. I am a lowly disabled vet, low income, no law degree. I do not have the means to do so. Those that do, complain but consent and keep their money and do not bother with the intrusion fighting such things bring into their lives. In short, nothing will change. Consent will be given.

        1. Did they really consent or did they merely submit?

          Bumper v. North Carolina (1968) – “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.”

          Florida v. Royer (1983) – “[I]t is unquestioned that without a warrant to search [an airline passenger’s] luggage and in the absence of probable cause and exigent circumstances, the validity of the search depended on [the passenger’s] purported consent. Neither is it disputed that where the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.”

    2. “If enough people did quit flying, things would change. Airlines would be at risk for failure. It’s not gonna happen. Americans are spoiled and would rather complain and hope someone else does something about it.”

      Are you stupid? Do you ever fly further than 500 miles? Why does someone inevitably come up with this in every TSA thread and think themselves clever?

      It’s not a possibility for those who fly on business or live on the other side of the US. You lack imagination and perspective.

      1. Nope, not stupid. I already stated quite clearly I do not fly because of the searches. Do I travel more than 500 miles? Yep. I drive.

        I tend to think the person that keeps consenting to these searches, all the while whining on the internet on how unlawful and unconstitutional they are or something to that effect, should look in the mirror when using the word stupid. Or, your just spoiled like I said in my statement you quoted.

        My rights are not violated. You give yours away willingly. “Stupid is as stupid does”. Yep, I’m watching Forest Gump.

  23. Would the Texas State legislature have proposed this when Bush was President? How about that Department of Homeland Security? Nope, not a peep. Now had Obama been President, instead of Bush, when DHS was created…can you imagine how different the reception for this Repartment would have been? IOKIYAR

  24. Isn’t ironic that the Texas legislature where, to quote the great and greatly missed Molly Ivins said, “if you can’t drink their whiskey, screw their women, take their money, and vote against ’em anyway, you don’t belong in office” actually tries to protect civil liberties?

    Irony persists in the face of constant assinity

  25. Go Texas! This is so in the right step. I just hope the other states take note and follow suit.

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