DOJ and TSA Threaten to Cancel Flights from Texas if HB 1937 Passes – Update: Bill Pulled, Senator Patrick Responds

Posted on May 25, 2011 in Alphabet Agencies & Operations, Constitutional & Liberty Issues – Kevin Hayden

Source: Lone Star Report (Original date: May 25th, 13:05)

The U.S. Department of Justice sent a letter to House and Texas Senate leaders Tuesday — reportedly in person — threatening a shut-down of airports if HB 1937 is passed.

The letter claims Rep. David Simpson’s (R-Longview) anti-TSA-groping bill is against federal law and the Supremacy Clause of the U.S. Constitution. We include the text of the DOJ’s letter, as well as a portion of Simpson’s reply, below.

UPDATE II – May 26th, 2011 – 12:09 

I received a comment from “Senator Dan Patrick” with an Austin, TX based IP address.  I can not confirm nor deny this is actually the Senator as it was from an SBC network and not a .gov address.  However, if true (and it sounds heartfelt), I apologize, Mr. Senator.  Here is the comment in it’s entirety.  I will follow-up with a supplemental article shortly as I investigate the comment’s origins a bit more.  Senator, feel free to contact me from a .gov address at if you would like to offer a brief interview regarding this situation. 

Senator Dan Patrick May 26th, 2011 12:19 pm   edit

I was alerted to your comments about pulling down bill HB 1937. You are attacking the wrong person. I had 30 out of 31 Senators signed to vote for the bill as I took the floor. While I was speaking the letter from the DOJ, threatening to close down air travel in Texas if it passed, was distributed on the floor. I noticed Senators talking in groups. I then had several Senators come to me as I was in debate saying they were off the bill, including co-sponsors.

I pulled the bill down so it did not die at that moment. I needed to find how many votes I still had. If the bill had been defeated at that point it would be dead. However, if I was only a few votes short I could hopefully persuade those members to come back on board and bring it back up and pass it. That was the smart thing to do. My goal was not to have a show vote, but to pass the bill.

I immediately discovered that the Lt Governor was the one who requested the letter from the DOJ. He also asked Senator Watson to go around the floor while I was speaking to change votes in order to block the bill. The Lt Governor then blamed Senator Watson and said he, the Lt Governor, had nothing to do with it. Senator Watson office has made a statement that it was the Lt Governor who asked him to block the bill. Senator Watson was not the person behind killing the bill, it was the Lt Governor.

There were a few patriots willing to stand with me on the vote, but after interference by the Lt Governor, we never had the votes to even bring the bill to the floor for the vote. We tried again last night but were not close in our vote total to bring the bill to the floor.

UPDATE: Texas Senator pulls the Bill, bows down and licks the hands which feed him.  So much for Texas having a pair… Samuel Adams would be ashamed of you, Senator Patrick!

“I voted for it [HB 1937], and I know people have concerns … but I get concerned when I see a letter from the Department of Justice” warning of the consequences, said Sen. Juan “Chuy” Hinojosa (D-McAllen) this evening as Senators debated the bill.

Senate sponsor Dan Patrick (R-Houston) pulled down HB 1937. But he didn’t pull it until after some fiery rhetoric about the principles of the bill, as well as allegations that TSA representatives were “lobbying” the Texas Senate today. “I will pull HB 1937 down, but I will stand for Liberty in the state of Texas,” Patrick said.

Continuation of original story and letter:

May 24, 2011

[On U.S. Department of Justice, Western District of Texas, stationery. Addressed to Speaker Joe Straus, Dewhurst, the House Clerk and the Senate Secretary]

Dear Leaders,

I write with regard to HB 1937, which I understand will imminently be presented to the Texas Senate for a vote.

This office, as well as the Southern, Northern, and Eastern District of Texas United States Attorneys, would like to advise you of the significant leagal and practical problems that will be created if the bill becomes law. As you are no doubt aware, the bill makes it a crime for a federal transportation official (“TSO”) to perform the security screening that he or she is authorized and required by federal law to perform. The proposed legislation would make it unlawful for a federal agent such as a TSO to perform certain specified searches for the purpose of granting access to a publicly accessible building or form of transportation. That provision would thus criminalize searches that are required under federal regulations in order to ensure the safety of the American public. The legislation also makes it a crime for a public servant, as defined by the bill, to deny or impede another person in the excercise or enjoyment of any right or privilege, knowing that the public servant’s conduct is unlawful. As a result, it appears the intent of the bill is to preclude a TSO from turning away from the secure area of an airport someone who otherwise would have been subjected to a pat down as a condition of entry.

The effect of this bill, if enacted, would be to interfere directly with the Transportation Security Administration’s (“TSA”) responsibility for civil aviation security. 49 U.S.C. §114(d); 6 U.S.C. §202(1). Congress has directed the Administrator of TSA to take “necessary actions to improve domestic air transportation security,” 49 U.S.C. §44904(e), and directed him to “prescribe regulations to protect passengers and property on an aircraft … against an act of criminal violence or aircraft piracy.” ID. §44903(b). Congress has directed TSA to provide for “the screening of all passengers and property … before boarding,” in order to ensure that no passenger is unlawfully carrying a dangerous weapon, explosive, or other destructive substance. Id. §44901(a), §44901(a), §114(e). If the Administrator determines that “a particular threat cannot be addressed in a way adequate to ensure … the safety of passengers and crew of a particular flight, he “shall cancel the flight or series of flights.” Id. §44905(b). HB 1937 would conflict directly with federal law. The practical import of the bill is that it would threaten criminal prosecution of Transportation Security Administration personnel who carry out the security procedures required under federal statutes and TSA regulations passed to implement those statutes. Those officials cannot be put to the choice of risking criminal prosecution or carrying out their federal duties. Under the Supremacy Clause of the United States Constitution, Texas has no authority to regulate federal agents and employees in the performance of their federal duties or to pass a statute that conflicts with federal law.

If HR [sic] 1937 were enacted, the federal government would likely seek an emergency stay of the statute. Unless or until such a stay were granted, TSA would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew.

We urge that you consider the ramifications of this bill before casting your vote.

Very truly yours,


John E. Murphy
United States Attorney

Simpson included a point-for-point refutation of the TSA letter, which we will post once LSR receives an electronic copy. Below is a portion of the accompanying letter:

175 years ago in the first battle of the Texas Revolution against Mexico, a small band of Texans stood in defiance at Gonzalez [sic], turning back the attempt to deprive them of their weapon of defense, a single cannon.

Gentlemen, we find ourselves at such a watershed moment today. The federal government is attempting to deprive the citizens of Texas of their constitutional rights under the Fourth Amendment of the United States Constitution and Article 1, Section 9, of the Texas Constitution. If we do not stand up for our citizens in the face of this depravation of their personal rights and dignity, who will?

Time is critical. If the bill does not pass the Senate tonight [Tuesday], it may very well be dead until the next legislative session. Meanwhile, our wives, our children, our mothers and grandmothers, will be rudely violated by federal employees out of control.

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