Flawed Texas HB 1937

The bill by Texas Reps. Simpson, Eddie Rodriguez, Menendez, Kolkhorst, and Chisum, HB 1937, http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=82R&Bill=HB1937 , to make it a state crime for federal Transportation Security Agents to use certain methods of scanning or inspecting passengers boarding aircraft, might get applause from the unknowing and unthinking, but it is poorly thought through, and can only serve to undermine its own proper purpose.

People need to develop detailed and knowledgeable scenarios for how any legislation would actually work out.

What happens if an attempt were made to enforce the criminal penalties? There is a reason why state and local governments do not attempt to prosecute federal agents for state crimes committed while the federal agents are on duty. Any such attempts will be immediately removed to federal court, where they will be summarily dismissed, on the grounds that a federal agent has official immunity for anything he does while on duty. http://en.wikipedia.org/wiki/Removal_jurisdiction

However, any state agent attempting to enforce such a state criminal statute would likely face criminal prosecution himself, under 18 USC 111, which provides:

§ 111. Assaulting, resisting, or impeding certain officers or employees

(a) In General.— Whoever—

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or
(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person’s term of service,

shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.

(b) Enhanced Penalty.— Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.

Now there is no constitutional authority for 18 USC 111 on state territory. Perhaps there should be, but it would require a amendment to the U.S. Constitution to provide it. However, that won't stop federal agents or courts from enforcing it. The odds are not good for a judicial challenge to it, and since the decision in Massachusetts v. Mellon, the federal courts refuse standing for a state to appear in federal court to protect the rights of its citizens. A state may pay the legal costs of a citizen, but not represent him.

We also need to be clear on the constitutional issues involved in the practices of the TSA agents. The U.S. government does have constitutional authority to operate inspection stations and require travelers to pass through them, as a way to enforce its lawful taxes and regulations. Travelers do not have a reasonable expectation of privacy for their baggage or cargo in such a situation. They do have for intrusive physical inspection of their bodies, and for such physical bodily inspection a warrant is needed, supported by an affidavit of probable cause. However, there is a gray area for scanners, depending on what technology is used. Backscatter x-rays inflict a hazard on bodies that passive terahertz scanners do not, since they detect only natural emissions from the body. Inspection by pattern-recognizing machines may be acceptable, whereas visual inspection by human agents would not be. The boundaries can be subtle.

We need more than gestures or protests on this and other federal usurpations. Legislation that pleases some constituents on first impression, but which has no chance to actually work, is not the way to spend scarce legislative or activist resources.

To those who might argue that the feds would need the cooperation of state agents to remove federal agents from state custody, because it would be unwilling to use force, they are underestimating the feds. The federal government would use force, not perhaps initially to make state agents comply with its orders, but just to remove any federal agents from state custody. This kind of thing has been done, and the feds are fully prepared to overwhelm state and local agents with superior forces. All the President has to do is call out the National Guard, which is part of the military and subject to his orders, and if that weren't enough he would use the rest of the military. This scenario has been wargamed many times and they are well-prepared.

This approach is fundamentally flawed. The only approach that can work within our existing legal framework is statewide passive non-cooperation and civil disobedience. It may not work to directly act against federal agents, but withholding cooperation in other areas can raise the costs of the U.S. government so much that it may decide to back off rather than incur them.

An alternative approach that might actually work is presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm .

To regain control of our agents

There is a widespread and growing perception that our agents, mainly organized into large public and private institutions, have gotten out of control. There is less understanding of what we need to do about it.

Some turn to litigation, usually without much effect. Others try legislation, only to find it tends to produce armies of bureaucrat administrators that try to apply simplistic rules developed in response to previous crises, and who get co-opted by the objects of their regulation. It hires a lot of government workers who then tend to vote for more power and larger budgets, and for the party that got them their jobs. Others try to terminate or reduce the funding of programs, only to encounter organized pushback from reliance interests.

Most such regulatory legislation is also unconstitutional.

Some call for more regulation, and some for deregulation. They are both wrong.

The traditional, constitutional, and still best, remedial response is grand juries. We need swarms of them, investigating every official and every institution, governmental, business, eleemosynary, financial. Impanel randomly selected teams of 23 citizens and direct them to probe into every institution and official department that might pose a risk to the public, with no established rules to be applied, with the power to subpoena testimony, issue indictments that appoint prosecutors, and report on their findings to anyone who needs to know about risky or illegal practices they may find. Give them a budget and allow them to hire staff, but with a mandate not to let staff run them.

To do the job right would be a monumental undertaking. Given the number, size, and power of public and private institutions, even if every one of the 250 million adult Americans were to serve on a panel for four hours a week, it might still not be enough to investigate and find all of the pathological practices that deserve attention and correction. Needless to say, most of those people would not want to serve, or would not have the needed skills, but the situation we face is not going to fit itself to our preferences or limitations.

This is the way forward, like it or not. We cannot depend on our agents to police themselves or each other. We have to do it.