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.

Capitol security theater: Insert phallic joke about 'wanding' here

I visited the Texas capitol yesterday and, as has happened every single time I've gone in since they installed metal detectors at the doors, the detector went off even after I'd emptied my pockets and I had to be independently "wanded," which is now apparently a verb, and not in a cool, Harry Potter sense. I don't wear any jewelry and was about as de-metaled as I could be without disrobing or perhaps removing the fillings from my teeth. It strikes me that once the massive volume of people that comes with session hits those entrances, if that happens to everybody, lines are going to be backed up six ways from Sunday.

It's hard to see how a security system that requires doublechecking every visitor is really feasible given high capitol traffic during the legislative session. The metal detectors were put in because an angry constituent fired off a gun outside the building on the capitol grounds, but all the new "security" has done is ensure that, if that happens again during the height of the legislative session, there will be large gaggles of civilian human targets available for the shooter at every capitol entrance. To me, this is pure security theater that actually exacerbates the threat to which it's responding.

I will say this: The DPS troopers at the entrances seem to be lightening up a bit (or maybe I just caught somebody in a good mood). I've been in the capitol maybe a dozen times since the metal detectors went in, and the demeanor of troopers before yesterday had ranged from professional and polite to kind of jerkish. Once a trooper at the capitol entrance began asking where I was coming from, etc., as though he were questioning a driver at a traffic stop. "Outside," I told him curtly, gathering my belongings and heading off to wherever I was going that day.

Yesterday, though, even the screeners couldn't help but engage in dark humor regarding their task. When the metal detector inevitably went off, the fellow with the wand announced, half-giggling with a knowing look to his partner, "Raise your arms, I need to check you for guns, grenades, rocket launchers ... you never know." Submitting to his perfunctory sweep, I laughed and replied that, knowing they'd yet to install TSA-style full body scanners, I'd come prepared and brought naked pictures of myself if the troopers would like to see them, reaching theatrically into my jacket pocket as though rummaging for the photographs. This brought big belly laughs, and the trooper with the wand told me that wouldn't be necessary "at this time."

Airport security, Kurt Cobain, and the Fourth Amendment

Yesterday Kathy and I flew back into the United States from what turned out to be a wonderful, much-needed and delightfully relaxing vacation - London, Berlin, visiting friends in a national park in northern Germany, then to Barcelona for 9 days of sun, surf, and sightseeing. Our return flight(s) took us from Spain through London, then Toronto before finally making it home to Texas.

For our big travel day home I found myself wearing an old t-shirt with an excerpt from the Fourth Amendment to the US Constitution emblazoned on the front: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...." I didn't wear it to make any particular statement, it just happened to be the last clean shirt in my backpack, which was otherwise jammed with sand-covered laundry, assorted toiletries and tourist acquisitions, plus a small stack of books including several novels that I read while we were gone. (It was a welcome joy, I should add, to pull my head, for the most part, out of all the criminal justice topics covered on Grits and spend time reading good fiction.)

Anyway, as I trudged through the airport in Toronto, weary, jet-lagged and quite ready to get home, the Fourth Amendment shirt turned out to be quite the conversation starter. Fellow travelers standing in the security line first commented on it, noting the irony that we were all about to take off our hats, coats, belts, shoes, run all our belongings through an x-ray and submit to metal detectors and possible pat-down searches in order to enter the country.

One older man with apparent Tea Party leanings (judging by further, unrelated conversation) declared that if police tried to enter his home without a warrant they'd get their brains blown out with a .44 magnum. I reminded him that may turn out to be a bad idea, citing poor Kathryn Johnston's case out of Atlanta. Police broke down the 92-year old woman's door one evening in 2006 based on a "no-knock" warrant obtained with information from an unreliable (or perhaps non-existent) informant. Terrified, Johnston cut loose with a shotgun at the intruders and was gunned down by police, who tried to plant drugs in her house after they realized their error.

That tale reduced his macho bluster a bit, though he couldn't resist suggesting that such incidents might be expected more frequently under Barack Obama's presidency. I retorted somewhat disdainfully that Mrs. Johnston's death occurred on George Bush's watch, and that such incidents occurred long before Mr. Obama hit the scene and would likely continue long after. (I'd love to have heard the fellow's views if he had a chance to read Radley Balko's work on SWAT teams and police raids.) By this time others in line were listening in and also commenting on my t-shirt, with more folks further back in the zig-zagging queue straining from afar to read its text.

I wasn't really in the mood for a political conversation and was rather relieved to reach the front of the line where we handed over our passports and customs declaration to a grossly overweight US customs agent. We answered his annoying, routine questions and watched as he perfunctorily stamped our passports, then I noticed the fellow peering over his glasses at my chest, muttering the strange words to himself in a barely audible whisper as he read them.

"That's a great t-shirt," he announced with a grin, "I'm a big fan of the US Constitution, especially the Second Amendment. You know, I took an oath to uphold and protect the Constitution when I took this job," he added, "and if you ask me, these days the biggest threats are coming from within this country instead of outside it, if you know what I mean." I had in fact not asked him, but I nodded my head in agreement, even though one imagines he and I likely disagree over exactly what internal threats the Constitution presently faces.

I told the fellow I considered it rather like wearing a Kurt Cobain t-shirt, commemorating something that's dead and anachronistic, however laudable or memorable for those of a certain age who could still recall when it was relevant. This elicited a loud belly laugh. "It's not that bad," he replied with a big grin. "There are still plenty of people like me sworn to protect your rights." "Oh, then y'all aren't about to make me go through a metal detector, take off my belt and shoes and x-ray my bag about 30 feet from here?," I asked as I watched passengers piling their belongings into trays to run through an x-ray before being herded like cattle in a feedlot through a metal detector. In the background, I could hear a woman plaintively, pointlessly arguing over the seizure of a bottle of hand sanitizer. The agent shook his head and sighed. "After 9/11, everything's changed," he lamented. "Anyway, welcome home."

At this point I should mention that as a practical matter airport security is largely a joke - pure security theater. A large number of people were staffing the US security point where we all had to pass through, though about half of them appeared to be standing around doing nothing of value, chatting to one another or chiding passengers for not arranging their belongings in their rectangular trays in just the right fashion. Three different people scanned my boarding pass, including before and after entering the metal detectors, as though it hadn't just been done by somebody else several feet away. A business traveler in line with us commented that he'd traveled all over the world for his job and that airport security took longer to enter the United States than in any other country, though he added that it might go quicker if all the people standing around aimlessly or triple-checking our boarding passes were actually helping process people through the system. I readily agreed.

The screen through which another overweight man was viewing people's carry-on baggage via x-ray was visible to me for much of the time I was in line. He looked bored, understandably, and while I was there he never once intervened to determine the contents of people's carry on luggage, even though it was impossible to tell what was in them given the jumble of items travelers were carrying. For example, my wife had accidentally forgotten to remove a pair of pointy scissors from her satchel that she'd been using to cut up brochures, postcards and pictures for a travel scrapbook she keeps whenever we go abroad. She discovered them once we were on the plane, but airport security had let them through without a hitch. At least that lady had been prevented from bringing on her hand sanitizer.

In reality, the best security comes from passengers themselves and alert airline staff, not from the army of underpaid bureaucrats pretending to keep us safe at the airport entrance. The reason the 9/11 hijackers succeeded was that before that tragic day, all plane hijackings had aimed to hold passengers hostage, but literally by the end of that day it was no longer possible for hijackers to take over planes with sharp objects. When passengers on the plane that went down in Pennsylvania learned other planes had flown into buildings, they stopped the hijackers themselves and would have prevented the plane's takeover in the first place if there'd been a history of such things when it happened. Similarly, the "shoe bomber" whose failed efforts now force all of us to remove our shoes in the airport was stopped by passengers who saw what he was doing and intervened. Ditto for the "Christmas Day bomber." The Government Accountability Office has found that airport screeners routinely miss guns, bomb parts, and other dangerous objects despite all the rigmarole.

It took about an hour to make it through the airport's security procedures and get to our gate. We arrived just before boarding began; more standing in line. At the end of the long hall headed to the plane, an Air Canada stewardess cheerfully welcomed me with a notable Quebecois accent before stopping for a moment to read my (apparently provocative) t-shirt and laughing out loud. "That's an appropriate shirt to wear to the airport," she said, smiling. A steward behind her looked too and grinned: "Ironic," he said, before looking at my boarding pass and pointing us to our seats.

"You're telling me," I replied, then shuffled obediently back to my seat, anxious to put the army of airport bureaucrats behind me and shift my thoughts away from these absurdist security procedures and bury my nose in an excellent set of short stories by Roald Dahl.