Earlier this month, the Texas House of Representatives unanimously passed a bill that aims to keep TSA agents from touching flyers’ private areas. Reuters reports:
The proposal would classify any airport inspection that “touches the anus, sexual organ, buttocks, or breast of another person including through the clothing, or touches the other person in a manner that would be offensive to a reasonable person” as an offence of sexual harassment under official oppression.
If this law is enacted, TSA agents could face a $US4000 fine and one year in jail.
This week the Department of Justice sent a letter saying that if the bill becomes law, Texas flights will be canceled (presumably this only refers to flights leaving the state, as incoming passengers will be sufficiently groped in other airports). According to Consumerist, the Texas legislators responded in a statement that TSA officials are currently exempt:
“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,” noted State Representative David Simpson (R-Longview), the bill’s author.
“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?” asked Simpson.
“All that HB 1937 does is require that the TSA abide by the Fourth Amendment to the US Constitution,” Simpson continued. “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.”
Things are worse than we thought if TSA agents are now required to go to third base at security checkpoints.
US Attorney John E. Murphy said in a letter to officials:
HB 137 would conflict directly with federal law. 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 Cause 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 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.
It’s exciting to see lawmakers calling out the TSA on a policy that at best annoys and at worst traumatizes innocent passengers, while doing nothing to make us safer. However, Murphy is right about the bill putting TSA officials in an unfair position. The policy needs to be challenged in a way that doesn’t involved arresting TSA agents for following federal law.