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Hey, Texplainer: Can Texas really stop the TSA from touching my privates when I go through airport security?

House Bill 1937 would have made it a misdemeanor offense for a federal Transportation Security Administration agent to “intentionally, knowingly, or recklessly [touch] the anus, sexual organ, buttocks, or breast” of a person going through airport security. The bill made it through the House, but it stalled in the Senate on Tuesday night when word came of a letter from the U.S. Department of Justice that said the bill would be in direct conflict with federal law and could lead to a shut down of Texas airports.

“As you are no doubt aware, the bill makes it a crime for a federal Transportation Security Official ('TSO') to perform the security screening that he or she is authorized and required by federal law to perform,” wrote John E. Murphy, the U.S. attorney for the Western District of Texas, based in San Antonio, in the letter sent to both the Texas House and Senate leadership. Such action "would thus criminalize searches that are required under federal regulations in order to ensure the safety of the American public," he said.

"The effect of this bill, if enacted, would be to interfere directly with the TSA's responsibility for civil aviation security. ... 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 statue that conflicts with federal law," Murphy wrote.

If the bill were to pass, the letter concludes, the federal government would seek an emergency stay of the statute. And until that happened, the TSA would likely be forced to shut down flights in and out of Texas.

The letter, and a visit by two TSA officials to the office of state Sen. Dan Patrick, R-Houston, the Senate sponsor of the bill, led to several Senators pulling their support for the legislation. When that happened, an angry Patrick withdrew the bill from consideration, telling his fellow legislators, “There was a time in this state, there was a time in our history, where we stood up to the federal government and we did not cower to rules and policies that invaded the privacy of Texans.”

(An interesting sidelight is the dispute between Patrick and Lt. David Dewhurst. Patrick blames Dewhurst for helping to scuttle the legislation in the Senate. He says he had 30 votes lined up to vote for the bill — until Dewhurst began working the members to change their minds.

“Although he’ll deny it today, he’s simply not being candid, because I know, and other members know, that he was [working to persuade members not to support the bill]," Patrick said today of Dewhurst. "He did two things: We had 30 votes yesterday, and he asked me to wait for the letter. I didn't want to wait for the letter because I said, 'What does the letter from the federal government have to do with the Texas Senate?' [And] once the letter came, he then dragged it out for another several hours so he could work the members," Patrick said. “I was absolutely sideswiped by the lieutenant governor on this.”

Mike Walz, a spokesperson for Dewhurst, says senators withdrew support for the bill during the course of the debate, which caused Patrick to withdraw the legislation. "Lt. Governor Dewhurst is concerned about the invasiveness of airport security screening procedures and supports the rights of law-abiding passengers," he said.)

Rep. David Simpson, R-Longview, the freshman who authored the bill, responded to the federal threat with a lengthy press release attacking the federal government for trampling the "dignity and constitutional rights of Americans."

He said, in part, “The bill clearly states that an agent is exempt from prosecution as long as a constitutionally sanctioned federal law directs them to perform the invasive, indecent groping searches — including touching breasts, sexual organs and buttocks.

"Instead of threatening to shut down flights in Texas, why doesn‘t the TSA just show us their statutory authority to grope or ogle our private parts?" Simpson said. "All that HB 1937 does is require that the TSA abide by the Fourth Amendment to the U.S. Constitution. We aren‘t even prohibiting the pat-downs, per se. We‘re just saying you can‘t go straight to third base. You have to have a reason — you have to have probable cause — before groping someone‘s sexual organs."

Simpson concluded, "Someone must make a stand against the atrocities of our government agents. As Reagan said, 'If not us, who? And if not now, when?'"

So who is right?

“It’s a bedrock principle of the Constitution that federal law is supreme over state law,” says University of Texas law professor Robert Chesney.

An oversimplified example would be that if the federal government created a law establishing that the minimum speed limit on a highway was 65 mph but a local entity, such as the state, passed a law saying the maximum speed limit on a highway was 45 mph, the state law and federal law would be in conflict.

Bottom line: A state bill criminalizing a lawful, federally mandated action would seem to be junk legislation. And we don't mean that kind of junk.

Below is a copy of the U.S. attorney's letter, annotated with Simpson's responses.

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