Texas vs TSA – The DOJ Steps Into The DHS’s Realm

At the start of May Texas State Representative David Simpson (R-Longview) introduced Texas House Bill 1937, a bill that would make it a felony for Transportation Security Administration (TSA) Transportation Security Officers (TSO) to touch a person’s genitals, or breasts, during a security pat down without probable cause during an ‘enhanced putdown.’

 

Since writing Texas vs TSA on the 5th of May, the U.S. Attorney and the Department of Justice (DOJ) have stepped between Texas and the TSA.  On the 24th of May U.S. Attorney John E. Murphy sent a letter to Texas Legislators stating “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.”

The letter goes on to say “The effect of this bill, if enacted, would be to interfere directly with the Transportation Security Administration’s (“TSA”) responsibility for civil aviation security. 49 U.S.C. §114(d); 6 U.S.C. §202(1). Congress has directed the Administrator of TSA to take “necessary actions to improve domestic air transportation security,” 49 U.S.C. §44904(e), and directed him to “prescribe regulations to protect passengers and property on an aircraft … against an act of criminal violence or aircraft piracy.” ID. §44903(b). Congress has directed TSA to provide for “the screening of all passengers and property … before boarding,” in order to ensure that no passenger is unlawfully carrying a dangerous weapon, explosive, or other destructive substance. Id. §44901(a), §44901(a), §114(e). If the Administrator determines that “a particular threat cannot be addressed in a way adequate to ensure … the safety of passengers and crew of a particular flight, he “shall cancel the flight or series of flights.”

 

The letter ends with “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.

We urge that you consider the ramifications of this bill before casting your vote.”

The involvement of the U.S. Attorney and DOJ stepping between Texas and the TSA posses some interesting legal challenges and jurisdiction issues, that pit the U.S. Federal Government vs the U.S. Federal Government.

 

The first major issue is this … while the U.S. Congress has granted the TSA the authority to conduct security screening and the TSA has 9th Circuit Court rulings that give the agency the legal standing to perform ‘Administrative Searches,’ without infringing on Citizens’ Constitutional Fourth Amendment Rights … neither the TSA nor U.S. Attorney have specifically cited what laws or ruling allow for ‘enhanced pat downs,’ that appear to go outside the scope of the 9th Circuit Court rulings which the TSA basis its legal authority on.

 

On a political level, why as the U.S. Attorney and Department of Justice stepped into an issue that is within the Jurisdiction of the Department of Homeland Security (DHS)? While the U.S. Attorney is the Chief Federal Law Enforcement Officer, and they are responsible for prosecuting criminal cases and representing the U.S. Government in Civil cases … Texas vs the TSA is a case that would fall to Francine Kerner, The TSA’s Chief Counsel or potentially Ivan Fong, General Counsel for the Department of Homeland Security.

 

Presently no answers have been provided as to why the DOJ has become involved in Texas vs TSA, and no agency seems to want to get involved in their own involvement. Earlier today the DHS would not comment on the situation, TSA Spokeswoman Sterling Payne advised that this was a DOJ  issue, the DOJ initially advised it was a TSA issue then Spokeswoman Jessica Smith clarified that it was a U.S. Attorney issue. Presently the U.S. Attorney’s Office for the Western District of Texas has not yet responded to questions regarding their legal jurisdiction to step into this situation.

 

Texas State Rep Simpson, the author of House Bill 1937 issued this statement in response to the letter Texas legislators received from U.S. Attorney Murphy

“Either Texas backs off and continues to let government employees fondle innocent women, children and men as a condition of travel, or the TSA will cancel Texas flights. The Federal Government showed its willingness to bully the State of Texas if attempts to protect passengers from being forced to give up constitutional rights are not dropped.”

 

While Texas’ Lt. Gov. David Dewhurst believes House Bill 1937 is dead … Rep. Simpson may begin waving the “Don’t Mess With Texas” flag.  I don’t think this is the last we’ve heard on this issue.

 

Happy Flying!