I'm told by someone who would know (he's a lawyer) that this is an open and shut case: Federal Preemption prohibits this sort of thing. Me, I don't think this is a legal issue so much as a political one. First of all, this hasn't become law (yet):
AUSTIN, Tex (Reuters) – The Texas House of Representatives late on Thursday approved a bill that would make invasive pat-downs at Texas airports a crime, after a former Miss USA said she felt "molested" at the Dallas/Fort Worth airport last month.
Transportation Security Administration agents could be charged with a misdemeanor crime, face a $4,000 fine and one year in jail under the measure.
The bill needs a final vote from the House before it would go to the Senate.So this is like the rattlesnake, shaking its tail. In a very real and literal sense, it's saying "do not touch".
But if the TSA wants to fight this one, good damn luck to them:
The proposal would classify any airport inspection that "touches the anus, sexual organ, buttocks, or breast of another person including through the clothing, or touches the other person in a manner that would be offensive to a reasonable person" as an offense of sexual harassment under official oppression.The history of this Republic is filled with examples of laws that juries refused to respect. The preemption law here looks to be very likely in line with that sentiment. A quick Youtube search for "tsa gropes toddler" returns an astonishing number of videos. Th ecourt of public opinion has already ruled, and it's ruled against the TSA.
We know that the ruling is in, because we see the political game playing out. The Texas Legislature is moving towards passing a law criminalizing TSA standard procedure. The politicians are weighing public sentiment, and it's running against the TSA.
And if that continues, and the law passes, it simply doesn't matter what the settled case law is. If the Legislature passes what turns out to be a popular law, and an Imperial Federal Government tries to get the court system to over turn it during an election year, there's a non-trivial chance that Governor Perry will take the Andrew Jackson stance:
The Supreme Court has issued its ruling. Now let it enforce it.It is said that we are a nation of laws, not men. The real danger of this Administration's regulatory overreach is that it will cause precisely this sort of popular vs. legal fracture. If Supreme Court precedent means that 6 year old girls are going to have their panties groped by Federal Agents, then the public will start to view Supreme Court precedent in the same light as they currently view the TSA.
Me, I don't think that it will get to that. First of all, the Obama Administration has no guts, and will get rolled by any real, spirited opposition. In other words, this is a good bet for the Texas Legislature to make.
Secondly, if it does get to the Supreme Court, there's considerable precedent on how this sort of thing plays out. It's been said - truthfully - that the Supreme Court reads the Election Returns.
Me, I'm getting the popcorn. This is fixin' to be fun.