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Unconstitutional TSA Bill Could Shut Down Texas’ Airports

By Ian Millhiser on May 25, 2011 at 3:40 pm

"Unconstitutional TSA Bill Could Shut Down Texas’ Airports"

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The Texas state legislature is considering an awesomely unconstitutional bill which would empower state law enforcement to arrest TSA security screeners and jail them for up to a full year. While the bill has no chance of surviving constitutional scrutiny, the Department of Justice warned Texas’ lawmakers today that it could force the TSA to shut down flights into Texas airports:

This office, as well as the Southern, Northern, and Eastern District of Texas United States Attorneys, would like to advise you of the significant legal and practical problems that will be created if the bill becomes law. As you are no doubt aware, the bill makes it a crime for a federal transportation official (“TSO”) to perform the security screening that he or she is authorized and required by federal law to perform. . . .  The practical import of the bill is that it would threaten criminal prosecution of Transportation Security Administration personnel who carry out the security procedures required under federal statutes and TSA regulations passed to implement those statutes. Those officials cannot be put to the choice of risking criminal prosecution or carrying out their federal duties. 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 statute that conflicts with federal law.

If HR [sic] 1937 were enacted, the federal government would likely seek an emergency stay of the statute. Unless or until such a stay were granted, TSA would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew.

There is no question that the U.S. Attorneys are correct here. Indeed, the Supreme Court established as early as 1819 that state laws never have the power to “destroy” something that federal law has created — such as TSA baggage screenings.

Moreover, Texas’ anti-TSA bill is part of a pattern of right-wing state bills that may inadvertently undermine the state’s ability to function. Just as the TSA may need to shut down Texas flights to prevent federal baggage screeners from being harassed by unconstitutional arrests, the Idaho legislature recently passed an unconstitutional bill that would have opted the state out of Medicaid — costing the state approximately two-fifths of its budget. Idaho Gov. Butch Otter (R) vetoed the bill, but he issued an executive order which also may cause the state to lose all of its federal Medicaid funds.

As it turns out, there are very serious consequences when conservative lawmakers thumb their nose at the Constitution. The Texas legislature would do well to learn that lesson.

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