Elysium at the airport: TSA groping now only for poor people

Techdirt has an item on an airport security development that Grits first noticed during my vacation last month, but which I forgot to blog about upon my return. The Transportation Security Administration has partnered with the airlines to allow passengers who pay an extra fee to skip most security protocols. Reported NBC-News:

Currently, the program has been limited to U.S. citizens who are members of frequent flier programs on select airlines, or the U.S. Customs and Border Protection (CBP) Trusted Traveler program, or Canadian citizens who are members of the CBP NEXUS program.

Later this year, the TSA said it will allow other U.S. citizens to apply for 5-year enrollment online after submitting fingerprints and paying an $85 fee.

A TSA Precheck emblem embedded on the barcode of passengers' boarding passes indicates if a flier is eligible for expedited screening under the program.

Why should I pay extra to avoid groping, and by what logic would paying extra make me less of a risk? Don't you think an actual terrorist would be itching to pay the $85 and avoid the extra scrutiny? None of it makes any sense except from the airlines' perspective. They were allowed to profit by giving people in their frequent flyer or club-card programs special treatment, so I understand why they'd approve of this Elysium-esque logic. But from the TSA's perspective it seems like a public-relations calamity that a) demonstrates their irrelevancy, a tacit admission that such screenings were really pointless security theater and b) amounts to a tone-deaf snub of all passengers not so favored.

Bottom line: It appears groping at airport security is now only for poor people.

RELATED: Airport security, Kurt Cobain and the Fourth Amendment

'The Police State is Here': Conservative critiques of Big Brother

 These few, disparate items with caught Grits' attention related broadly to limits, or the lack thereof, on government power:

Conservative critiques of Big Brother
A reader forwarded a link to an interesting pair of stories from the Rockwall County News (July 26). See here (pdf) - the articles in question are the second and third ones on the first page, scrolling down, with these headlines:

• Will you be the next peaceful traveler? A scenario and analysis of judicial practice
• The Police State is Here

The second story laments that "So-called fusion centers have popped up in 49 states, amassing files on ordinary Americans for doing the most ordinary of things." These articles interest me not because of their incisiveness - I could quibble with aspects of both of them - but because they portray critiques of the criminal justice system from the perspective of populist conservatism.

Texas let DEA install license plate readers
Speaking of fusion centers and gathering data on ordinary Americans, the national ACLU has launched a research effort to gather information about automatic license plate readers. Their press release mentions:

The Drug Enforcement Administration is planning to install a network of plate readers on major highway systems nationwide. The Department of Homeland Security clocks every car that enters the country. Local and state police departments operate many thousands of ALPR systems nationwide—how many and to what extent, we aren’t sure. Together these programs form a network of data points that can tell the government a lot about our lives.

The Texas Department of Transportation in 2008 rejected a DEA request to install license plate readers on Texas highways, however another recent ACLU blog post stated that "scanners are already in place on 'drug trafficking corridors' in California and Texas." I was unaware that 2008 decision had been reversed. Does data from license plate readers, one wonders, funnel up into so-called "fusion centers"? Who besides DEA has access to this information?

Cops get database with Texans' Rx prescription information
Texas is developing other large databases that a civil libertarian may fear would be uploaded into fusion centers or used by various government entities for reasons unrelated to the purpose for which they were created, particularly a "new state online database of patient prescription drug information." Reported the Fort Worth Star-Telegram, "DPS officials say the database is secure and, beginning this month, available to registered users who provide licensing information, including law enforcers." And if it's available to "law enforcers," why couldn't the data be uploaded to fusion center databases?

On the political economy of the militarization of domestic policing
While we're on the subject of conservative critiques of the criminal justice system, check out this academic article critiquing the "the political economy of the militarization of domestic policing" from the perspective of the Law and Economics movement. Here's a notable passage attributing abuses to the government's near "monopoly" on use of force:

One reason governments are able to effectively exploit their citizens is because they maintain a monopoly, or near monopoly, on military force. It is the concentration of military power, with its weaponry, organizational structure, and tactics that serves as the ultimate tool of government abuse. The threat of violent force raises the cost of deviations from government decree and can be used to repress citizens. As per the paradox of government, this leads to the central concern that while force can, in theory, serve the function of protecting citizens from threats to their person and property, it can also be used by the political elite to undermine the very rights government is tasked with protecting.

Fourth Amendment as a campaign issue
Finally, Grits found it fascinating that legislative efforts to restrict TSA pat downs at airports became a campaign issue in the Texas GOP US Senate runoff, and it seems highly likely the topic will be revived next year when the Texas Legislature meets again. For many years the only time the Fourth Amendment came up in Texas campaigns was when politicians (from both parties) promised to scale back its protections in response to the "war on drugs" and/or the "war on terror." The measure turned out to be immensely popular with the GOP base and perhaps could open the door to more legislation aimed at bolstering Fourth Amendment protections (which couldn't happen soon enough to satisfy this correspondent).

Read more here: http://www.star-telegram.com/2012/08/02/4150020/state-launches-online-database.html#storylink=c

'Rick Perry: Don't Touch My Junk'

The headline of this post is how the Fox News blog titled the AP story about Governor Perry adding legislation to restrict Transportation Security Agency pat downs to the "call" for Texas' special session. As first reported in the Houston Chronicle:

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.

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.

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?

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.

RELATED: "A Tainted Texplanation on TSA 'groping' bill."

A tainted Texplanation on TSA 'groping' bill

At the Texas Tribune, their "Texplainer" column posed the question, "Is TSA 'Groping' Bill Junk Legislation?," answering in the affirmative, but in the comments Grits took exception to their reasoning. The reporters hung their hats on a quote from University of Texas law professor Robert Chesney declaring that, "'It’s a bedrock principal of the Constitution that federal law is supreme over state law." To this Grits replied:

Yeah, who cares about that pesky 10th Amendment, anyway? That was clearly just a clerical error the Framers meant to edit out but forgot. (/sarcasm) The "bedrock principle" has an "except" in it that this argument fails to acknowledge. (Actually two "excepts," but nobody, and I mean NOBODY, certainly not law professors, champions the 9th Amendment anymore.)

Then there's this ignorant piece of editorial flotsam: "if the federal government created a law establishing that the minimum speed limit on a highway was 65 mph but a local entity, such as the state, passed a law saying the maximum speed limit on a highway was 45 mph, the state law and federal law would be in conflict."

That would be a great example if you drew the proper conclusion. Perhaps the authors fail to realize the feds CANNOT set those speed limits, and instead coerce states into doing it by threatening to take away federal highway funds. They can bribe states into doing what they want, but they cannot overrule state speed limit laws, so if the two were in conflict, contrary to Prof. Chesney, state law would be "supreme" over federal law.

Even the TSA disagrees with the interpretation given here! Their letter says the bill would ""make it unlawful for a federal agent to perform certain specified searches," which implies that it could be passed, enforced, etc.. They're just saying IF it passed it would interfere with their agency rules, but what they DON'T say is what Prof. Chesney claims - that the law would be constitutionally invalid.

How a proper federalism analysis would apply to TSA screening is another question, but it's one not at all Texplained in this article.