Gov. Rick Perry announced he had added legislation that would make it illegal for TSA agents to engage in “intrusive touching” at airports security checkpoints without probable cause to the list of items for the legislature to consider during the special session.Grits approves of this move for at least two reasons. First, as I wrote last fall, I despise the idiocy, intrusiveness, and redundancy of post-9/11 airport security, and I want to see a re-assertion of the 4th and 10th (if not even the 9th) Amendments on all available fronts. Whether or not federal courts would allow it is both a legal and a political matter, but as a political stance I'm happy to see it. Further, I'm not quite as morose about the bill's legal prospects as Conor Friedersdorf at The Atlantic who says it's a "publicity stunt that's doomed to fail." I might have thought so until I saw the disingenuous arguments TSA and its supporters made in reaction to the bill, and then I began to wonder if, underneath all the Anti-federalist mumbo jumbo and bipartisan Big Government chutzpah, the Emperor really isn't wearing any clothes? Perhaps we'll now find out?
The measure had previously failed to muster enough support in the Texas Senate to come up for a vote because the Justice Department wrote a scathing memo against the bill, which threatened legal action against the state, and the measure became enmeshed in Senate politics.
There are questions about what impact the legislation might have since airport security is a federal matter.
I do agree it will be difficult to overcome the trend over recent decades of federal courts accumulating power instead of disseminating it to the states on "national security" grounds, a pattern of court precedent that one imagines may be too powerful to overcome. But the reason has as much to do with politics as with constitutional argument. For that reason, the bill is worth supporting if only to begin chipping away around the edges at federal overreach on security matters, and I couldn't agree more that "it's nice to see that it is suddenly good populist politics to push back against War on Terror national-security excesses."
MORE: From the Texas Tribune.
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