States Rights – Nullification

| June 1, 2011

First a caveat or two: I don’t know who Tom Mullen is, and I’m not remotely a Constitutional scholar. This simply interests me, YMMV. Perhaps anyone who owns a firearm should be interested even though this issue isn’t directly about that.


[UPDATE] As noted in the comments: There’s a special session which will re-consider the bill mentioned below.

As the special session of the Texas Legislature got underway Tuesday, one of the bills which gained second life was HB 1937 by State Rep. David Simpson, a bill which criminalizes intrusive pat-downs by agents with the Transportation Security Administration (TSA). The law would require TSA to produce some type of probable cause before touching areas like genitals and breasts.


This particular story opens with Texas v. TSA:

Texas is gearing up for a fight with the Transportation Security Administration (TSA) over its perverse airport screening tactics. Last week, the state House of Representatives unanimously approved legislation holding TSA agents accountable for their conduct under sexual harassment statutes.

Then the hasty response from the Feds:

The U.S. Department of Justice sent a letter to House and Texas Senate leaders Tuesday — reportedly in person — threatening a shut-down of airports if HB 1937 is passed.

And the capitulation:

A threat from the federal government to shut down Texas airports or cancel flights may have killed legislation by Tea Party conservatives in the Texas Capitol to prohibit federal Transportation Security Administration agents from conducting “invasive searches.”

More below the fold for those interested.

Mr. Mullen weighs in with a cogent argument, I think.

The near-showdown in Texas did not break any new ground in the nullification debate. The Texas House of Representatives passed a law that made the touching of genitals or breasts by TSA personnel illegal and punishable by fines and imprisonment. The federal government responded by citing the Supremacy Clause of the U.S. Constitution, together with a threat to cancel all air travel to and from Texas if the law were passed by the Senate and signed by the governor. The Texas Senate backed down. The crisis was averted – for the moment.

In a way this issue was explored 150 years ago with The Civil War. If states don’t have rights, why even have states.

Category: Politics

Comments (17)

Trackback URL | Comments RSS Feed

  1. Doc Bailey says:

    the 10th amendment, often forgotten, states clearly anything not covered in the constitution is the preview of the states.

    The trap of Washington is that you see all these problems and want to fix it. so what if you step on toes, you’re FIXING things. Worse, how can you control the (insert derogatory term of the opposition)? how can you trust (insert derogatory term for a population) to do the right thing? that is the trap of washington. Every reformer that goes in will *eventually* fall into it.

  2. Sponge says:

    It’s the Chicago way.

    The airport security would’ve been just fine under private control after 9-11 with pressure put on them to do better. The worst thing was for the government to take it over.

  3. Miss Ladybug says:

    Gov. Perry called a Special Session because the Dems scuttled the budget. There is talk about this issue being brought up again in this Special Session… Lt.Gov. Dewhurst, also President of the Senate, is getting some blame for this, and he’s got his eye on Kay Bailey’s Senate seat next election cycle…

  4. Sean says:

    Those flights are mandated by Law to go through TSA screening. Texas tried to interfere and got rightly bitch slapped for interfering with Federal Commercial Air Safety. Feds rightly could have banned all fliughts out or into Texas.

  5. Sean says:

    Oh and airline travel is interstate Commerce, under the purview of the Feds, NOT the states

  6. streetsweeper says:

    @ #6- The flip side to that remark is; Federal law is superseded by stricter city/county/state law. The precedent for that has been established by the then Interstate Commerce Commission(ICC) now known as Federal Motor Carrier Safety Administration(FMCSA) and parent agency United States Department of Transportation (US-DOT).

  7. DaveO says:

    Should the Feds shut down DFW, the Feds would lose. Most flights west of the Mississippi route through DFW, and the economic cost to the Nation would exceed our current undeclared war in Libya.

    The issue is the pedophilia/sexually permissive groping going on in the pat-downs. Minor, very minor modification of the pat-down procedure ensures the suspected terrorist toddler (and who hasn’t been on a flight with an upset toddler? They are terrorists!) isn’t packing, and the flight can proceed.

    That the Federal government is pro-pedophilia doesn’t surprise me. S3x fiends need jobs too.

  8. malclave says:

    #s 5 & 6

    Sweet… the right of government agents to grope people’s genitalia is protected under the Commerce Clause.

  9. 2-17AirCav says:

    This issue is a monster in many ways but the nut is that the interstate commerce clause is the means by which the Federal government enters virtually every facet of our lives. The ICC also renders moot most Article X arguments because if the interstate commerce clause is operable, the matter is no longer reserved to the states, notwithstanding the explicitly language of Art X. The good news (at least from my perspective) is that the damage done to states’ rights through the Supremes’ fanciful treatment of the ICC can be undone. In the meantime, the TSA gets to rub your privates.

  10. AW1 Tim says:

    Easy to deal with: Call the Feds bluff. This works if a majority of states will also pass similar laws and vigorously arrest and prosecute all TSA perverts and jail them for long periods. Ensure they are forced to register as sex offenders.

    Lets see how long the feds last when the airlines refuse to stop flying to Texas or anywhere else. Lets see what happens when the airlines refuse to allow any US congressmen or senators to fly with them.

    I hope Texas stands up to these bastards. It’s time for a severe restriction on the limits of the interstate commerce clause.

    God Bless Texas!

  11. Sean says:

    Air Travel isnt a right people. You’d bitch and whine if a Plane gets blown up because security was lax. Don’t like it? visit the chaplain. Retards are accusing federal agents of being Pedophiles for doing their job.

    Does that mean a G.I. searching a Kid during a Cordon and Search in Iraq/Afghanistan is a Pedo as well?

    If any of you have searched a Prisoner/Detainee according to standard are you a groper? are you asking for Joes to be arrested for same conduct?

    get real ladies, HTFU and quit whining.

  12. Miss Ladybug says:


    A prisoner/detainee is a prisoner/detainee for a reason, and even though they don’t have the right to US Constitutional protections (they aren’t Americans and they aren’t within the border of the US). What reasonable/probable cause does the TSA have to believe members of the traveling public are terrorists? If the Feds would PROFILE for who is likely to be a terrorist, we’d all be much safer than we are right now, wrt air travel…

  13. 2-17AirCav says:

    “Air Travel isn’t a right people.” Sure it is, person. I have judicial support for my assertion. What’s your authority?

  14. Sean says:

    2-17 your seriously saying you have a right to commercial air travel?

    Have you read a ticket and how you can be refused service? somehow I doubt it.

    2 examples

    “Search of Passenger or Property
    When a passenger refuses to permit search of his person or property for explosives, weapons, dangerous materials, or other prohibited items.”

    “F) Passenger’s Conduct or Condition
    Delta will not refuse to provide transportation to an individual with a disability, as defined in 14 C.F.R. § 382.5 and 382.31, based upon his or her disability, except as provided in Rule 35(G), below. Delta will not refuse to provide transportation based upon race, color, national origin, religion, sex, or ancestry. Subject to those qualifications, Delta may refuse to transport any passenger, or may remove any passenger from its aircraft, when refusal to transport or removal of the passenger is reasonably necessary in Delta’s sole discretion for the passenger’s comfort or safety, for the comfort or safety of other passengers or Delta employees, or for the prevention of damage to the property of Delta or its passengers or employees. By way of example, and without limitation, Delta may refuse to transport or may remove passengers from its aircraft in any of the following situations:
    1) When the passenger’s conduct is disorderly, abusive or violent.
    2) When the passenger is barefoot.
    3) When the passenger appears to be intoxicated or under the influence of drugs.
    4) When the passenger attempts to interfere with any member of the flight crew in the pursuit of his or her duties, or fails to obey the instruction of any member of the flight crew.
    5) When the passenger has a contagious disease that may be transmissible to other passengers during the normal course of the flight;
    6) When the passenger has a malodorous condition;
    7) When the passenger is unable to sit in a seat with the seatbelt fastened;
    8) When the passenger requires an onboard stretcher kit;
    9) When the passenger’s behavior may be hazardous to himself/herself, the crew, or other passengers;
    10) When the passenger is seriously ill, and fails to provide a physician’s written permission to fly.
    11) When the passenger is traveling in an incubator.
    12) When the passenger’s conduct creates an unreasonable risk of offense or annoyance to other passengers.
    13) When the passenger’s conduct creates a risk of harm or damage to the carrier’s aircraft and/or property, or the property of other passengers”

  15. Sean says:

    Wow I’m awaiting Moderation? Forget it didnt realize this blog was so uptight about basic truths. Good Luck I’m done with this place.

  16. UpNorth says:

    Don’t let the door hit ya, where the good Lord split ya.
    As for questions, can one commit a sexual assault under color of law? As in groping someone in the line to partake of a luxury, i.e., air travel? Not to mention, a full body grope of a 5 year old? I’d say yes, it happens just about every day. Not to mention, hassling veterans who’ve been wounded, trying to board a flight.