Texas close to banning TSA searches, TSA invents desperate new constitutional interpretations

The Texas House of Reps just passed just passed a bill banning TSA searches without probable cause ("A person who is a public servant [acting under color of his office or employment] commits an offense if the person: (2) while acting under color of the person's office or employment without probable cause to believe the other person committed an offense: (A) performs a search for the purpose of granting access to a publicly accessible building or form of transportation;). The TSA has responded with headless chicken hysteria, making up gradeschool misinterpretations of the nature of US federalism.

This time, the TSA is on the defensive, and published an official statement about the Texas bill on their blog: "What's our take on the Texas House of Representatives voting to ban the current TSA pat-down? Well, the Supremacy Clause of the U.S. Constitution (Article. VI. Clause 2) prevents states from regulating the federal government. "
The problem here? The statement is false. Ignorance from the TSA is unlikely, so I'll call a spade a spade. They're lying.

In public statement, TSA lies about the Constitution (via Reddit)

(Image: Waiting, a Creative Commons Attribution (2.0) image from cote's photostream)

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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Cowicide

The American public should ask… no, fuck that… DEMAND that TSA-head-idiot John “Packin’” Pistole gets ousted and immediately replaced by AMTRAK Police Chief John O’Connor.

Amirite?
kmoser

I seem to recall an early 1960s incident in Dallas, Texas when lax security had disastrous consequences.
- emmdeeaych
  
  Wow, you’re right… the assassin had nothing to do with it… it’s the responsibility of the security apparatus to keep us all safe from harm… and tucked in at night too.
  
  and burped. and changed.
  - turn_self_off
    
    I think you will find that it is media that do most of that…
  - Anonymous
    
    When you put it like that, it sounds dumb. But yes, security is supposed to… keep us safe.
Mykeljon

United States of America is not an accurate name for this country. It should be Independent States of America. I fail to understand this pathological fear of allowing the federal government to unite, serve, and protect it’s people. Oh silly me. I just remembered. Texas does not want airport security or government security anywhere. Texas wants to hang onto its god given right to assassinate presidents.
Drabula

in this case shouldn’t it be “Don’t Mess with Tex’s Ass”?
Anonymous

The TSA searches already violate molestation laws (especially those that ban CHILD molestation), child pornography (the TSA actually stores each and every image from those scanners, by the way), and possibly even rape laws, that are in the books in EVERY state, so by the TSA’s own logic, and by the logic of a lot of you, every anti-molestation, anti-rape law, and anti-kiddie porn law is null and void because the TSA patdowns trump laws that prohibit them!

And if YOUR state was passing such legislation to muzzle the TSA, you wouldn’t even be batting an eyelash!
Crispian

Like others, I’m intrigued to see boingboing endorse such a conservative reading of the Constitution. Like the mandate in Obamacare and the enforcement of immigration laws, the federal government is saying it is the sole arbiter of such rules and that the states cannot override its determinations.

Virginia passed a law saying its citizens cannot be forced to buy insurance. The federal government says the Supremacy Clause dictates that the law is void (provided it proves it has the power to mandate insurance purchases). State usury laws are also void against banks thanks to federal supremacy. States cannot tell TSA workers how to do their job. The question – whether Texas makes a law or not – is whether the Constitution permits these searches. Under the Commerce Clause we may be forced to buy insurance. It is also a search when the TSA xrays our bags. But the courts have upheld that. There was also this:
http://images.sodahead.com/images/polls/0/0/0/2/7/7/2/5/3/polls_tsa_metro_0150_855274_poll_xlarge.jpeg

The government simply says we don’t have to travel by air but otherwise consent to a search done under the auspices of protecting an instrumentality of interstate commerce.

Personally, I think the insurance mandate and the TSA gropings should be deemed unconstitutional. I think states should be able to prevent FDIC banks from charging absurd interest rates on credit cards. For all its faults and inability to enact universal change,
Antinous / Moderator

I’m intrigued to see boingboing endorse such a conservative reading of the Constitution.

I’m intrigued, too. Because I don’t see any endorsement.
- teapot
  
  You obviously missed the memo. Absolutely everything written online is henceforth to be done strictly for the purposes of achieving an agenda, and never for the purposes of general discussion.
  
  Cory should be charged with treason for this!
- Crispian
  
  You don’t see the endorsement of a conservative reading of the Constitution. It comes in where it is said the TSA’s statement is a “gradeschool misinterpretation” and for that point quotes that it is a lie that the Supremacy Clause “prevents states from regulating the federal government.” The Supremacy Clause absolutely prevents states from dictating how the government is to operate. See McCulloch v. Maryland.
  
  There is also the fact that the chosen source for this proposition is the 10th Amendment Center which advocates a conservative reading of the 10th Amendment that would invalidate the health care law and federal environmental regulation. There is the fact that the liberal interpretation of the 10th Amendment is that is is almost entirely redundant and toothless and that the Supremacy and Necessary and Proper Clauses are more than sufficient to authorize the searches at airports.
- Bonobo
  
  It seems disingenuous to say that you don’t see any endorsement in this article. The headline claims “TSA invents desperate new constitutional interpretations” after the TSA make perfectly reasonable claims, and then the article points us to a bizarre misinterpretation of the constitution for more information.
FlenGord

It’s more than a little embarrassing to treat the 10th Amendment Center as a credible source on Constitutional law. Really unexpected mis-fire from Boing Boing — perhaps a little too ready to hope this will have a substantial effect on TSA policy?
- AirPillo
  
  It’s more than a little embarrassing to treat the 10th Amendment Center as a credible source on Constitutional law. Really unexpected mis-fire from Boing Boing — perhaps a little too ready to hope this will have a substantial effect on TSA policy?
  
  This isn’t the first time, if I remember right. I recall clicking through to their site from BB before and being a little put off by how obviously agenda-driven their legal interpretations were.
  
  When all you have is a hammer, everything looks like a nail. All the 10th amendment center has is a 10th amendment hammer.
Anonymous

What is the freaking deal with you TSA lovers??

Do you really *like* the TSA that much???

Not just do I have to deal with it at airports, these clowns are now invading our train stations, our bus termianls, and our effin SUBWAY STATIONS.

Be prepared to do the shoeless walk of shame every day on your morning commute.

What?
You think that a fully unionized federal agency is just going to go away?
You don’t think that another tentacle of the law-enforcement industrial complex is just going to NOT try to expand itself, do you??

This isn’t paranoid conspiracy-talk, they’ve already been setting up random screenings at bus terminals and train stations, as well as the DC metro.

What Texas and NH are doing is great, and if it becomes a trend, it could be exactly what we need to restore some sanity to travel in this country!

I <3 states rights.
It’s why the good people of California allow us to lawfully buy marijuana, even when the feds insistthat I deserve to be sent to a private prison work camp.

Screw all of you authoritarian ass-hats.
Texas is doing good here.
I hope that any TSA creep who touches my genitals gets handcuffed, arrested, and thrown in the slammer.

– Spoonface
- Neon Tooth
  
  What is the freaking deal with you TSA lovers??
  
  What’s the deal with anti-labor astroturfers like yourself?
- strangefriend
  
  Anon(Spoonface)– the TSA is barred by federal law from unionizing.
  Maybe that’s why all TSA agents are so cranky.
simonbarsinister

“Ignorance from the TSA is unlikely” ?
I don’t think we are thinking of the same TSA.
Stonewalker

Ok, so everybody here is thoroughly grossed out by republicans, can we move on now? This is about principles people. A bill that would strengthen a protection of THE PEOPLE is a GOOD BILL. That is all.
Kevin

The only thing I think BB has endorsed is somebody trying to do something to counter the TSA. It may look like BB is endorsing something else, but that’s because this is an issue on which large segments of the right and the left agree. Or, at least, the libertarian segment of the right agrees with most liberals that the government is vastly overreaching and it needs to be stopped.

Probably, no serious person should get dragged into a debate between the 10th Am. Center and the TSA, neither of which is likely to come up with a coherent legal argument. The Supremacy Clause doesn’t actually say “the states shall not regulate the federal government,” in those words, but that’s basically the point – if there is a conflict between federal authority and state authority, the federal rule controls. But exactly how that would play out in this situation is not that clear. The “nullification” doctrine is entirely bogus, but on the other side the TSA is being typically arrogant by just linking to the Constitution and essentially saying, “we don’t have to explain ourselves.”

My understanding of the TSA’s position is that it is conducting “administrative searches,” which is a recognized 4th Amendment exception but I am not sure it applies the way the TSA interprets it. I think that’s their explanation for why they don’t need a warrant or even probable cause. My guess is that somebody in Texas is arguing that the TSA’s interpretation of the admin searches exception is not valid, and so a TSA screener had better think twice before searching without probable cause, because if that person loses on the federal defense then TX can prosecute him. Federal officers have a limited immunity from suit (a defense that stems from the Supremacy Clause), but that all depends on whether what they are doing really is consistent with the federal constitution. And if it isn’t, they’re screwed, because the Constitution is what is really supreme (or is supposed to be) – any state statute, federal statute, or half-educated TSA guy’s legal opinion has to be consistent with that document.

What we really need are federal judges who will enforce that idea, but at least Texas is taking a step in the right direction.
NatWu

If’n you folks hate the TSA searches so much, take it on in federal court or get Congress to tame them. Nullification doesn’t work and never has, and this is another stupid stunt by Republicans in our state legislature pursuing their dumbass political agenda instead of doing their jobs and figuring out how to fill the black hole that is our budget. We’ve already lost over 10,000 teaching jobs from layoffs and early buy-outs, not to mention the coming wave when whatever budget they have is finally passed. Instead of dealing with issues that are actually important, they’re passing tax cuts for yacht owners (yeah, for real) and debating laws that making cheating in pro fishing tournaments illegal (again, for real).

Whatever position you folks might have on the legality of the TSA searches, please, do not say that Texas Republicans have even an iota of sense for fixating on this issue. Given that near 20% of our state’s population lives in poverty and over 25% have no health insurance, there are better issues for these idiots to be focusing on. And yet they refuse to actually make any hard choices like how to save education. While our schools go to hell, they’re trying to bring back nullification. I don’t want my balls groped either, but they will get no kudos from me.
Muser

I believe there are two points in this issue that are being conflated. In their zeal to see everything as an issue of states’ rights, the Tenth Amendment Center is arguing that the Supremacy Clause doesn’t prevent the states from overruling Federal laws in general. This is clearly wrong, and the TSA is not lying about this.

HOWEVER, they do have a point in arguing that the TSA procedures may violate the fourth amendment, regarding illegal search and seizure. This has never been taken to the Supreme Court. The Supremacy Clause explicitly only addresses laws that are constitutional to begin with (“This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land”).

So I suppose Texas could argue that their law is valid because it overrides a federal law that is not covered by the Supremacy Clause because of its unconstitutionality. The only way to prevail on this is to push it all the way to the US Supreme Court and have them rule on whether the TSA is violating the fourth amendment.

I think this would probably be a good thing to do, especially if it unites the left and the right to fight against unreasonable searches.
Culturedropout

I’ll just go make some popcorn. Watching someone poke the TSA with a stick when that someone is big enough to make them sit up and take notice should prove to be entertaining. Yeah – Texas generally sucks, but there’s that whole “Enemy of my enemy” thing to consider, too. X)
Anonymous

I don’t feel safe unless the government has it’s hands down your pants. Unless everyone is considered a terrorist real terrorists might get through. Think about it, even with everyone considered a terrorist, terrorists get through. We need a government to check everything. Freedom is the past, a safe secure ORDERED nation is our future. It’s time we say the DHS become the defacto State Security Agency. Kiss Goodbye your Butt to anyone who opposes a secure future.
AnthonyC

And Texas may be entirely within its rights to do this… as long as those planes aren’t leaving Texas. Intrastate commerce and all that.

Interstate commerce, piracy on the high seas (and presumably in the air, in the same way that the clause about an army and navy lets congress create the air force), and even suppressing insurrection would seem to give the federal government authority to regulate airport security.

I agree that current “security” measures are (a) laughable and (b) in violation of the 4th amendment. Seizing a bottle of water without and possible explanation of how it could be used for harm, let alone probable cause, is an unreasonable seizure to any thinking person. But the only thing this law will do is shut down Texas airports until the law is overturned in court. I suppose it’s possible that when that happens, the courts might also restrict the TSA’s powers, but IANAL.
Anonymous

It’s a rare example of Texas “nullification” or “interposition” which isn’t being used to oppress blacks. (You may remember Gov. Ross Barrett of Mississippi using the doctrine of “interposition” to prevent desegregation of Mississippi schools.)

However, it isn’t constitutional, and won’t make it through the federal courts.

This isn’t an endorsement of TSA policies, but Texas Republicans are wrong in this instance.
JayR

Cory, the Tenth Amendment Center’s interpretation of the Supremacy Clause is laughably incorrect. You really shouldn’t be endorsing this kind of crazy.

And someone needs to let the Tenth Amendment Center know that the majority of their arguments were rejected at the most important courthouse in American history – Appomattox.
Mike2

If Texas doesn’t like the TSA, maybe it can ban it under it’s 10th amendment theory.

On the other hand if the FAA and other states don’t want to allow flights from Texas… it’s hard to say why they can’t ban those too. That’s interstate commerce and I’m pretty sure the Feds own that one.

In the end, the result is all for the good… no more Texas. We’ll be a better nation in every way.
1849

It’s about time!
- Anonymous
  
  Yeah, the time is 1849 in the shrunken brains of the Texas legislature.
MarkM

You can’t pass a state law that restricts the federal government.
That’s our Constitution. The one you claim to have read and keep in
your back pocket at all times. You want to change a federal law,
Mr. State Representative? Run for Congress.

So, which is worse: willful, disingenuous “ignorance” or actual ignorance?

They either know this and their attempt is just for show (a la the
healthcare repeal efforts), or they don’t and they’re that same type
of local quack that thinks creationism should be in the school textbooks.
- NatWu
  
  Here in Texas, you can’t always tell. Honestly, East Texas sends some of the most ignorant people to the the state lege that I don’t doubt some of them aren’t aware that they can’t actually abridge federal law.
  
  Also, a lot of people down here do think creationism should be in textbooks, so again…
Amelia_G

That’s wonderful! I already preferred to change planes in Texas because their airports aren’t shut down by snow in winter and haven’t yet grown too big to work. Now I’m wishing I could take off from there as well.
Stonewalker

Here I was thinking that the BoingBoing readership valued civil rights, no matter the political trappings. I’m gonna go hang out at slashdot for awhile. Sheesh.
gwailo_joe

Hmm, i was just going to say something to the effect of

‘Woo-hoo! Don’t mess with Texas!’

as I (like many others) tire of removing my belt et al and kowtowing to rude, harried TSA workers. And the leeching of liberties and intrusion of personal space in the name of ‘safety’.

But, many people want to feel safe. Whether or not they actually ARE safer, is another matter entirely.

But the arguments above hurt my head: who’s right, who’s wrong, amendments, states rights, sheesh: too complex for me!

I do know this much: whoever ‘wins’, you the citizen traveller, passenger, tax-payer etc (and of course i’m counting good old me in this)

You, little person, will NOT win. Much money may be spent to untangle it (your money i might add); but the groping and scanning will never stop: Brave New World folks…we ain’t never going back.

Basically, the beatings will continue until morale improves.
Anonymous

So now terrorists just have to go through Texas to get bombs on planes. Well I’m sure they won’t take advantage of that.
Pope Ratzo

I’d be more sympathetic if it was anyone but Texas. After Louisiana, I think they’ve got more people in prison than any other state. It’s not like they care so much about civil rights. Rather, it’s just a matter that they’re pissed because there’s a black guy in the White House so they want to do anything that looks like they’re fighting Washington. There wasn’t all this anti-government sentiment in 2003 in Texas, because there were right-wing republicans running things.

Personally, considering Texas is getting a lot more money from the Federal Government than they are paying in taxes, I wouldn’t mind seeing them secede from the Union. Horrible schools, a huge percentage of the population in prison, everyone carrying guns. They bring down the average for the rest of us.
The Steel General

To anon #100 and #101:
You’re a bit moronic because that is not what is being said. The TSA pat downs may well be illegal and or unconstitutional, but that is NOT FOR THE STATES TO DECIDE!!! And especially not Texas, which participated in an armed rebellion against America ….

They should do it via the Federal courts, in which the whole country gets to decide not just Texas and it’s 7 red state friendsters ….

MarkM is right when he said:
“Reminds me of GOP tactic of defunding IRS because they don’t like taxes. Then complaining about the debt.
So, they’ll neuter the TSA to nothing. Then complain about terrorism.”

How stupid can you get?

The larger issue is of course, the sudden discovery of civil liberties by the ReichWing. They had no problems with the Patriot Act, but against the TSA? All of a sudden they don’t mind the chance of being blown to pieces in the air?
Bunch of hypocrites.

Please take note of the “probable cause” excuse here. This will come down to racial profiling in the pat down policies. So those who Palin does not deem “Real Americans” will be EVEN MORE than now will be picked out of the line up, to be patted down.

It’s not rocket science: we can’t have states decide what THEY like about Federal law. We can’t have 50 interpretations of the Constitution. Didn’t we fight a whole Civil War about that one? Didn’t we win that one? Yes we did! Wasn’t that cos they wanted States’ rights so they could keep slaves? Yup … yup … and we said: “Hell NO, you can’t”, we kicked their racist butt and the rest is history. Deal with it. TSA has jurisdiction, NOT Texas legislature, are you crazy?
Daemon

Ignorance from the TSA is unlikely!?
Given their track record, it actually seems quite plausible to me.
- RussNelson
  
  I agree. Incompetence seems like the TSA’s modus operandi. Actually what I think they’re trying to do is misdirect people into thinking that Texas is trying to modify the Constitution. They’re not. They’re just telling the TSA “You can’t do this in Texas even if the Constitution doesn’t prohibit you from doing it.”
egoVirus

Don’t mess with Texas.
- Antinous / Moderator
  
  Don’t mess with Texas.
  
  …or it will pout at you. We make fun of other parts of the country all the time, but only southerners show up in droves to complain about how mean we are.
  - Anonymous
    
    Texans != Southerners
    
    Texas has much stronger cultural ties to the other southwestern states and the Great Plains states, than to the southeastern states (AKA “The South”). As PlaneShaper points out, Texas chauvinism grows from its having been an independent republic. Thus the other slogan previously used by (I believe) its tourism department, “Texas – it’s a whole ‘nother country.”
    - NatWu
      
      First point is true.
      
      On the second, that slogan has little or nothing to do with Texas’ brief period as a Republic. It’s got a lot to do with the fact that being the largest of the continental 48, it has a widely varied geography. Not to to belabor the point, but we have beaches (some are nice), desert, hill country, swamps, forest, plains, and mountains (of a sort). Not to mention the variety of cultures. Austin, Houston, Ft. Worth, Dallas, San Antonio and El Paso are all different experiences. So, anyway, that’s what that slogan is really about.
Anonymous

Want more fun thoughts? This law, as written, would also apply to those nosyparker U.S. Customs Service (or whatever they’re called now) poking in your bags coming into the *International* airports in Texas. It would be nice to bring them back within the bounds of the 4th Amendment, too.
technogeek

Hold it. The Texas legislature just said something I agree with? Maybe the universe *is* ending.
Anonymous

I would think flight authority is under the Federal Aviation Administration. They (FAA) would be able to deny flight permission to any flight originating from an airport without adequate screening.
All they have to do is send the screeners home for a few days and close down the airports.

Texas being Texas they would send up planes anyways. The simplest thing to do then would be deny them clearance to land and if they do land imprison the flight crews and seize the planes.

It makes a mess for a few days. But it sends the message flight is under federal authority and if they want to fly then need to obey federal rules.

I am not American and not in America. I think it would be fun to watch.
Anonymous

If the Supremacy Clause really DOES dictate that Federal Laws supercede State Laws in totality, then explain why a US Constitutional Amendment was required for the following:

-The nationwide abolition of slavery
-The nationwide expansion of voting rights to non-whites, women, and people 18 and up (in 3 separate amendments, as a matter of fact)
-Direct popular vote of US Senators
-The Federal Income Tax
-Prohibition
-The Repeal of a US Constitutional Amendment (specifically speaking, the aforementioned Prohibition)
- The Steel General
  
  Sigh.
  Because THOSE WERE TOO, FFEEDDEERRRAALL LLAAWWSS !!!!! sheez, dumbass.
Anonymous

Lemme get this straight, so I understand.

Arizona tries to enforce existing Federal immigration law and border security, and some think that’s a bad idea, and (some) people complain that Arizona should not be allowed to usurp Federal jurisdiction.

Meanwhile, Texas passes a law to prevent TSA excesses to its citizens, and then somehow, many of the same people who have problems with the Arizona situation seem to think that Texas should be allowed to usurp Federal jurisdiction.

Can anyone else smell the hypocrisy?
RussNelson

I don’t understand how the Constitution comes into this at all. It seems like Texas is just saying “These are the rules for searching in our state. If you violate them, you go to jail. It doesn’t matter that the Constitution doesn’t prohibit them. We do.”
badtux

Unfortunately, the TSA is right. A dude by the name of William Tecumseh Sherman sort of put the punctuation on that one when he made South Carolina howl for the crime of putting state’s rights over U.S. government rights. Or as Gov. Earl Long of Louisiana is reputed to have said in 1958, when the Louisiana legislature demanded that he defy a Federal desegregation order: “Are you %&@! kidding me? We’re talking about the U.S. government here. They got the #!%$ atomic bomb!”

If the State of Texas attempts to enforce this law, we’re going to see an 81st Airborne repeat of Little Rock 1956 — and remember, the Airborne won that one. The Texas Rangers are outgunned, outmanned, and outttrained by the 81st Airborne. No contest. In the end, as Chairman Mao so astutely put it, power grows from the barrel of a gun — and the Federal government has a whole lot more of’em than the State of Texas.
Mark Frauenfelder

Texas is only being this way because a Democrat is president. If Bush and Cheney were still in office, Texans would be handing the TSA inspectors speculums and telling protestors they are worse than terrorists.
- Stonewalker
  
  Why is that a problem though? Politics in Washington IS A GAME. This is a fine means to an AWESOME end. We (the People, the same “People” who the Bill of Rights is supposed to protect) need more States to stand up and file criminal charges against TSA agents who violate CIVIL RIGHTS.
  
  I don’t care if Texas hates democrats – they are right in this situation.
  - The Steel General
    
    This is precisely the problem with you ReichWingers (or those who adopt that way of Palinesque thinking when it’s convenient):
    
    This is NOT AN EFFING GAME!!! If you view politics like that, you have serious paranoia issues, and you’ve bought into that whole Reaganistic Kool-aid that tells you the government is your enemy. Sure, Texan and Republican goverments ARE our enemy. That’s why we vote them out of office …
    
    But government as such is FOR, WE the People, and BY the People.
    
    Big Corp is FOR their bottom line. Time and again, they’ve shown that they’re willing to POISON Americans in order to get more money.
    
    If you don’t like that Senators are bought and paid for by Big Corp, ATTACK politicians that wanna stop finance reform.
    
    Big govt is a myth, spread by Big Corp, so Big Corp can grow. Look around you. Who seems to have won that “GAME” ???
holtt

Wait. We like Texas now? I thought we hated Texas.
- Cowicide
  
  Wait. We like Texas now? I thought we hated Texas.
  
  Austin is in Texas, fool.
- BoingTDB
  
  It’s OK to like them temporarily under the Broken Clock Doctrine which states that even a broken clock is right twice a day.
- brerrabbit23
  
  Hating Texas for telling the Fed gubment to fuck off is like hating the rain for being wet.
- Anonymous
  
  I’m going to go with: It took Nixon to go to China, it takes Texas to show us the insanity of the TSA …yep, that’s my final answer.
- Muser
  
  Even a stopped clock is right twice a day.
- Halloween Jack
  
  It’s not so much that they’re all about the personal liberties (they banned dildos, after all) as they’re against the current administration. I don’t think that the grope-search passed some notional threshold that the TSA wasn’t near during the Bush Administration.
- social_maladroit
  
  Definitely a case of politics making strange bedfellows. Mother Jones, on the author of the article Corey cites above:
  
  Boldin describes himself as a “recovering Catholic” and reads Mother Jones. He got into politics because of the invasion of Iraq and has come to believe “that most of what the federal government does, from foreign to domestic policy, is a constitutional violation.” [...] Though Boldin is adamant that “nullification is not secession,” his interpretation of the Tenth puts him in the same camp as those who have used states’ rights to justify segregation and armed resistance. He’s annoyed by that line of argument, which he says he often hears from liberals. “There’s no more racist entity in the world than the federal government, which has killed millions of brown-skinned people around the world!” he exclaims.
RussNelson

I see what the problem is here. The linked article comes from the 10th Amendment Center. From what I can see of the Texas bill, it just adds restrictions on what public servants may do. Just like federal agents have to obey all the other state laws, and don’t get an automatic “bye” just because they work for the federal government.

If you disagree, then explain to me why federal agents bother obeying speed limits? They’re state laws. Can a federal agent carry a handgun in New York City? Yes, but only because state law permits them to.

Has nothing to do with nullification, although the 10th Amendment Center would *like* it to.
- PlaneShaper
  
  Federal government personal must obey state laws when acting as a private citizen within the bounds of a state. The official duties of federal government personal, however, are not subject to state laws, provided they are Constitutional. As an extreme example (to make the case), a state cannot outlaw the federal government from imposing martial law within their borders should such use be Constitutional.
  
  The same justification exists behind TSA officials using full-body scanners within Texas as it would for the FBI/DEA raiding a non-medicinal marijuana dispensary should any state legalize its use. A state cannot, by itself, declare un-Constitutional an aspect or duty of a federal agency in order to prevent it from taking place within its borders.
  
  Texas has a recourse, which is to make the case for non-Constitutionality of the scanners and pat-downs through federal courts. As someone else said earlier, Texas could probably also get away with preventing TSA agents from using their measures on people whose travel both begins and ends within Texas (as the federal government doesn’t have jurisdiction in intrastate travel). But it would probably be a lot of hassle to do so, as the TSA could also require physically separated terminals for handling intra- vs interstate travel.
  
  Texas actually has more than just that recourse, as well. They could have called for a Constitutional Convention and proposed a specific amendment to see if they could get 3/4 of state support on their side. But with our currently polarized legislatures, that’s unlikely.
  
  @Mark — Pretty much. But there’s plenty of hypocrisy on both sides of the aisle.
  
  @coaxial — Texas isn’t so much Neo-Confederate as they are Neo-Republic of Texas. Texas and Texans often have a bit more arrogance than other states with regards to doing whatever they want due to their short-lived countryhood. It’s indoctrinated pretty early on in most native Texans.
  - coaxial
    
    If this type of John C. Calhoun nullification bullshit was limited to Texas, I’d be tempted to agree with you about this not Neo-Confederate, but look throughout the Confederacy you’ll see nullification in all those Republican controlled legislatures. Of course it’s not limited to just the southern states. It’s actually now integral to contemporary Republican politics. They’re Neo-Confederates. They describe those that took up arms against the government as “patriots” that deserved to be honored.
    
    No. This is 19th century crap.
BrendanBabbage

In ditching “Probable Cause” and all the other stuff it was a worse betrayal than Arnold or Ames and far more damaging to America inside and out than any 9/11.

With all the freedoms and rights abused after 9/11 the government admitted essentially to every King, every dictator, every bandit and despot and pirate; “You were right. Our country is nothing but the heirs of a bunch of elites who betrayed their King to cheat him of his taxes. Our ideals were just lies to get the little people to go along with us and then we taxed them more than the king ever would. Our laws, ideals, are paper thin at the slightest stress, we just repeat the lie again and again but all that matters is that we are strong and you must fear us.”
- Kimmo
  
  With all the freedoms and rights abused after 9/11 the government admitted essentially to every King, every dictator, every bandit and despot and pirate; “You were right. Our country is nothing but the heirs of a bunch of elites who betrayed their King to cheat him of his taxes. Our ideals were just lies to get the little people to go along with us and then we taxed them more than the king ever would. Our laws, ideals, are paper thin at the slightest stress, we just repeat the lie again and again but all that matters is that we are strong and you must fear us.”
  
  Man, that’s gold. That has to be the best distillation of the situation I’ve come across.
  
  Fucking nailed it.
Anonymous

I’m frankly a bit surprised to see this posted here. The TSA is not making up anything- I believe they are totally correct. The website this post links to is spreading misinformation, as many groups that use the 10th Amendment as a way to combat federal policies they don’t like are apt to do. (These arguments were very big against Roosevelt’s New Deal, and against the Civil Rights Act.)

The Commerce Clause is a very broad tool that gives the federal government control over activities, so long as those activities affect interstate commerce. Airplane travel is a great example of an activity that directly deals with interstate travel. Unless you have an airline or an airport that exclusively flies within a state, you are subject to the Commerce Clause. (And even if it did only fly within the state, the fact that the airport or airline affects the stream of commerce, in purchasing parts for planes, etc, it is still subject to federal regulation.)

Once the federal government gains the right to control an activity, federal law trumps state law regarding that activity. This is Con Law 101 right here. Which brings me back to my original point- I am very surprised that BoingBoing would post this looney-bin crap from a Tea Party-esque, pro-nullification site.
CygnusXII

Nullification at its’ finest.

http://en.wikipedia.org/wiki/Nullification_%28U.S._Constitution%29
badtux

Actually, Russ, it is a *FEDERAL* law that allows federal agents — and all other law enforcement officers — to carry handguns in New York City. It’s H.R. 218, the â€œLaw Enforcement Officersâ€™ Safety Actâ€. If you are a licensed law enforcement officer employed by any government agency of any federal agency or state or local government in America, or are retired from such an agency, you can carry a handgun in New York City — period. New York City doesn’t like this one bit, because the notion of 90-year-old retired Deputy Fife from Podunk, Kansas carrying a handgun in their city interests them about as much as anal warts, but they’re still required to obey the law and do in fact do so.
Jonathan Ehrich

IANAL, but that website looks to be a bit overly generous with their interpretation of the 10th amendment, and certainly not very consistent with the law of the land as it is actually practiced. I’m not a fan of the TSA or security theater in general, but I think on this case I trust them to be right more than a group that sends out template bills to legislatures which wave a magic wand and prevent the federal government from regulating health care or protecting the environment.
- EH
  
  Jonathan Erlich@5: Nice try on the ad hominems. How about “they both suck but only one is on-topic for this thread?”
  
  Let us know if you need further information about basic Internet etiquette.
  - Jonathan Ehrich
    
    Where’s the lack of substance? Where’s the ad hominem?
    
    A makes the claim that the supremacy clause obviously can’t apply in this situation, and the very idea that B makes the claim is so patently ridiculous that they must be lying.
    
    (I think this is a reasonable paraphrase of their argument).
    
    Entity A also has—available in a direct link off of the web page that is linked to above–boilerplate documents intended for passage by state legislatures that argue that the federal government has no right to pass legislation pertaining to health care or the environment. Although I have no expertise on the matter at hand, I would argue that a brief look at the world around us demonstrates that this is A: not the majority view, and B: not a view accepted in the vast majority of American courts or by the vast majority of constitutional scholars. I can provide a large number of examples of observations that justify this claim if this seems less incredibly obvious to you than it does to me.
    
    On the other hand, entity B puts forward a claim that is *more* consistent with my observations of the general boundaries of federal and state law, although perhaps poorly and too-broadly phrased.
    
    If A makes a series of claims based on the same mechanism (in this instance an interpretation of constitutional law), and some of the results of this proposed mechanism are transparently false–whereas B makes a single claim based on a mechanism which is consistent with observations–than it seems to be more likely that B is accurate than A is. Certainly, in this context it seems at best either dishonest or foolish to argue that B’s claim is so preposterous as to be itself a lie.
  - emmdeeaych
    
    ad hominem infers an attack on someone’s person in lieu of addressing the substance of that persons argument. I think he addressed the substance just fine, though perhaps ad absurdum. Do you give lessons in that as well?
    - social_maladroit
      
      He just did.
BillGlover

Just to clear up a few point. “Don’t mess with Texas” was the slogan for an anti-littering campaign. I’ve never heard of it referred to for anything else from people in Texas.

Also Alaska leads the nation in prisoners per capita, the state I live in, California, leads the country on total inmates. And Texas is 45th http://www.ktvu.com/news/9254885/detail.html

The actual residents of Texas have about as much say in who leads them as the nation as a whole. Do you want to be judged solely by the type of people who claim you elected them?
- AnthonyC
  
  I don’t know where the slogan came from, but the one time I visited Texas 8 years ago (Austin, specifically) it was all over the stuff in the gift shop of the Texas State History Museum.
  
  And here’s the stumper facing me: exactly which political factions *do* like the TSA?
noen

This is all Alex Jones boilerplate paranoia. Including the “hands down your pants” phrase which Alex uses frequently on his show. Alex has also had Texas legislators on his show and his popularity has greatly increased. He has millions of listeners

That Alex Jones’ insanity is becoming mainstream worries me.
Anonymous

The TSA’s “Supremacy Clause” excuse falls apart quickly for 2 reasons.

One of them is the language of the Supremacy Clause, itself.

“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.”

The Supremacy Clause only applies if the Federal Law in question is consistent with the Constitution! Does the TSA’s patdown policy look like something that’s consistent with the US Constitution? The 4th and 10th Amendments in combination don’t agree!

The second reason it doesn’t hold water? Where is the “Federal Law” that makes these patdowns legal binding, and more importantly, who made it? Last I checked, the TSA is NOT Constitutionally authorized to make ANY laws, or enforce laws that don’t exist!
coaxial

This is just Texas and the Republicans engaging in discredited 19th century ideas, specifically nullification. The supremacy clause prevents that. We fought a war against traitors about this because they wanted to keep slaves. A state does not get to tell a federal agent he/she can’t enforce a federal policy or law. If you allow this, then Texas will simply say, “Government agents can’t enforce an law or policy standard beyond what is prescribed by the Texas legislature.” Screw that, that’s not how the constitution works.

Fuck Neo-Confederate Texas.
- holtt
  
  Wait. We like the Government now? I thought we hated the Government.
  - coaxial
    
    1) Who’s “we?”
    2) Why the hell should anyone embrace a discredited crackpot theory, regardless how vogue it is?
YakHerder

The Supreme Court has yet to weigh in on the Texas law, of course, but there’s at least one mention (in “dicta,” which is the filler material that the court writes before getting to the point) that hints at how the issue might come out.

“Nor do we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports, see Florida v. Rodriguez , 469 U. S. 1 (1984) (per curiam )…cannot conduct protective searches on the basis of information insufficient to justify searches elsewhere.” Florida v. J.L., 529 U.S. 266 (2000)
semiotix

So we’re “Tenth Amendment patriots” here at BB. Got it.

Not exactly my cup of tea, but I guess my steampunk and YA fiction fandom comes at a price. I look forward to bracing exposÃ©s of all the other Tenther bugaboos: Medicare, interstate highways, the EPA, the Department of Education, the National Science Foundation, and… honestly, there aren’t enough electrons on the internet to list them all. Basically government as any American born since the Taft administration would have experienced it.

Of course, there is such a thing as an act which would be unconstitutional on Tenth Amendment grounds. It’s even possible that someone might one day less-than-purely-opportunistically invoke the Tenth Amendment as a reason to oppose some sort of proposed policy or law. But I doubt that Cory et al would be terribly happy with a US in which the Doctrine of Interposition was regarded by the courts as anything more than a “gradeschool misinterpretation” of the Constitution.
MarkM

Reminds me of GOP tactic of defunding IRS
because they don’t like taxes.
Then complaining about the debt.

So, they’ll neuter the TSA to nothing.
Then complain about terrorism.
- AirPillo
  
  So, they’ll neuter the TSA to nothing.
  Then complain about terrorism.
  
  Sounds good!
  
  People can complain without handling me or my belongings.
querent

Go Texas.
Anonymous

IANAA (an American) but the argument as I read it gos something like this:
Federal law says one thing, TX wants to opt out of that law (on constitutional grounds), people are worried that if States are allowed to overturn Federal law it could lead to other, worse scenarios of the same.
People then argue that the only way to overturn TSA searches is on a Federal level.
I see that as very unlikely if it is left to individuals.
If they have the backing of their State, more people will question this and hopefully more States, akin to the Medical Marijuana issue. Hopefully then, critical-mass will follow and Federal Law will have to ditch that particular law.
But without the backing of a State, there’s slim chance.
Anonymous

Well said, Semiotix.

Tenthers : U.S. Constitution :: Peoples’ Temple : Teachings of Christ.
Anonymous

The 10th Amendment Center’s theory is deliberately misleading and are not accepted in any court I’m aware of. There may be constitutional issues, but a border search is not measured by pure 4th amendment standards is not done, for better or for worse.

I recognize and respect hating on the TSA, but they’re playing fair ball on this one.

(sorry, I am a lawyer, but am lacking in the prerequisite wordsmithing this morning).
jphilby

With repeated signs of American spine getting thinner than its topsoil, gotta laud this maneuver. Mario Savio was right.
The Steel General

this is getting sick:
“sir can i search you for bombs?”
“no you can’t because …. that’s KIDDIE porn/molestation!!!”

TeKKKsas RepuKKKes … they’ll say anything to hurt the government.

If you don’t like the government … get the fuck out of my country! Go to Mexico, cos that is what Repukes wanna turn America into, just for the rich elites, 90% Third World low wage McJobs and the rest is criminals. Great.
filecabinet2003

This kind of state meddling with Federal regulations simply cannot be allowed. (Sorry, privacy folks: it would set a precedent that is completely intolerable). Some smart lawyer somewhere will find a way to ensure that TSA keeps doing its job.

How about the inter-state commerce clause? If Texas does not allow TSA to do what it does, then that endangers other states who do – because people will be boarding planes unsafely there but flying to other states, then those other states are put at risk because of the wackadoodle anti-guvmit sentiments of Texans.
turn_self_off

Sanity from Texas? Color me surprised.

Now stop forcing these security measures onto other nations as well!
Infinitude Tortoises

“Power corrupts; absolute power requires a government permit.” Or TSA fiat.
Nimdae

As a Texan, I’ve been following this and a related bill (bans the porno scanners). This bill DOES NOT bar the TSA from manual searches. This bill does two things: It includes the requirement of probable cause for a search, as does any other situation, re-instituting the 4th Amendment, and it takes away the protection the TSA agents had from prosecution in cases of molestation, rape, and other sexual misconduct (lets face it, if you penetrate the vagina or anus, you’ve committed rape, and these cases exist).

http://www.legis.state.tx.us/billlookup/Text.aspx?LegSess=82R&Bill=HB1937

You can still get searched by the TSA if they can provide probable cause for the search. Given the nature of anti-terrorism, I would find it hard to believe the TSA can’t use that to establish probable cause.

Pat downs and other searches are not being taken away from the TSA. The illegal bits are being made illegal at the state level.
- MikeP
  
  Except that only the courts have standing to interpret the constitution. State legislatures have no power to do so, and there’s basically an entire body of case law that says that Texas can’t do exactly what it’s trying to do.
  
  Frankly, the Texas law is counterproductive. If you want to argue against the TSA’s policies, do it based on the fourth amendment. Don’t make up some bullshit argument about the states right to interpret the constitution because the federal government isn’t doing it right. To be perfectly frank, the TSA will win against that argument every time.
coaxial

I “love” the whole “You’re either with us or against us,” comments. If you don’t support crackpot interpretations of the federal constitution that a C student in eighth grade social studies could shoot down, you’re for a police state.

I will not side with John Birchers and secessionists.
Anonymous

I believe that we settled this back in … oh, 1819 in McCulloch v. Maryland. Look, no matter how much you hate TSA policy, allowing the Texas Lege to unilaterally overrule Congress is Not A Good Idea — especially for those of us who live in Texas. Sure, today it’s TSA, tomorrow it’s Medicare, the day after it’s HUD and HHS, after that it’s the DoJ’s Civil Rights Division.
shiva7663

That tenther blog is wrong about the Supremacy Clause. This is going to end up biting Texas in the butt if they push it all the way. The only sure way to fix the TSA is at the federal level.
unit_1421

@anon about Nixon:

Nixon going to China was a very BAD thing for the most part, since it opened the floodgates for outsourcing. China’s guilt and obscene ambition to get over falling behind from the late 40′s to the early 70′s has led to repression on a global scale. Turning rice farm slaves into factory slaves is NOT progress and China can no longer feed itself.

Texas just wants to retain the power of Gate Rape for its own state troopers, they don’t give a fuck about anyone’s rights.
- NullUserException
  
  That’s the most ridiculous thing I’ve ever heard.
  
  You got it backwards: the U.S. got the world in a recession and China took it out of it.
arbitraryaardvark

So far the bill has passed the house, but not yet the senate or been signed by the governor. Texas is making an important political statement, which might or might ever be legally enforceable.
The supremacy clause doesn’t give all federal employees diplomatic immunity. What it does do is that if federal employees can show they are acting pursuant to a validly enacted regulation, authorized by a statute who does not itself conflict with the constitution, they win. Each of these stages could be attacked. Both sides have good lawyers and deep pockets.
When John Gilmore (who also has good lawyers and deep pockets) challenged the TSA about whether he needed to show a flying license, he lost his case but in the process found out that TSA did not have a regulation requiring passengers to have a flying license, and as a result people like me can fly without showing ID.
If Texas tosses some TSA people in jail for a weekend,and then has a trial, we might learn some things. There is a legal conflict and a political conflict. If Texas wins the political conflict,and TSA blinks, they don’t need to win the legal conflict.
In Indiana, I’m in the middle of a long struggle about whether I have a right to vote without showing ID, because I see it as connected to the kind of invasive searches that go on at airports and elsewhere. Unfortnately I don’t have good lawyers or deep pockets.