An Arizona legislative bill is dead over conflicts with the TSA's agenda
By Eileen McGuire-Mahony
TSA Administrator John Pistole may have just shut down the Arizona legislature. The state's House was considering a bill that would have mandated the TSA be replaced with privately hired security professionals in all airports across the state. HB 2288, sponsored by Republican Rep. Jeff Dial, has been pulled from the Transportation Committee's calendar, and some legislators believe the Federal government was behind it.
If Arizona lawmakers are right that HB 2288 has been pulled from the legislative calendar over, “some move by the federal government”, as Rep. Chester Crandell, said, the potential implications for states rights and partnerships across levels of government are daunting. Rep. Dial's bill on airport screening picked up 15 sponsors and made it though second reading on January 24, 2011, before being assigned to the Transportation Committee. However, the agenda for the Committee's January 27, 2011 meeting shows the bill struck off.
Some pundits panned the bill ahead of its disappearance from the calendar, arguing that private airport security was in fact a major cause of the 9/11 attacks.
Created in the frenzy of security legislation that followed the September 11th attacks, the Transportation Security Agency and its parent, the Department of Homeland Security, have exploded in size and budget. At the end of October 2010, the TSA announced new 'security precautions': invasive physical searches of passengers that included handling peoples' genitals and increased use of x-ray machines despite a lack of clear evidence the millimeter radiation is safe for use on the proposed scale.. Within days of the new policy, leaked images of naked travelers began hitting the Web
Pistole and his supervisor, DHS Secretary Janet Napolitano, herself a former Governor of Arizona, later admitted the surprise roll-out of the new searches was a poor public relations decision; they also admitted the searches were invasive and unpleasant, perhaps even humiliating, but both figures were insistent that nothing less was acceptable in the face of what they described as looming and constant terrorist threats. When Pistole announced there would be no roll-back of the new searches, derisively dubbed 'gate rape' and 'porno scanners' by civil rights activists and privacy advocates, a little known clause of the legislation authorizing the TSA came into play. Any commercial airport in the U.S., so long as it screens passengers to TSA standards, is free to opt out of having actual TSA employees on its grounds, and may instead hire private security.
Florida Congressman John L. Mica, an author of the TSA law, publicly encouraged airports to do just that. Amidst reports of inappropriate behavior and sexually grotesque comments from TSA workers reveling in their power over travelers, the idea gained some traction. Private employees were seen to be easier to discipline and fire, thus making them friendly toward passengers. Low hiring standards for the TSA, which does not even require a high school diploma, were also cited as reason to look elsewhere for security personnel. When an Atlanta TSA employee allegedly abducted and raped a female passenger and was later found to have been convicted of harassment and stalking in the past, fresh public opprobrium was heaped on the agency. The Agency itself had to confirm that neither stalking nor harassment are considered disqualifying behaviors among its job applicants and was left red faced trying to explain how its touted careful screening of all employees was unable to detect the alleged attacker's instability.
However, at the same time, the TSA was pushing for collective bargaining rights, something President Obama has been promising since his campaign days. His first two nominees to head the TSA were both forced to withdraw their nominations over GOP objections, related to nominees' personal conduct but also to an unwillingness to have a TSA Administrator so keen on unionizing. However, John Pistole did pass his confirmation hearings. Having largely survived the outcry over invasive searches, last week Pistole announced that he was using his prerogative as the TSA Administrator to disallow any further applications from airports to replace the TSA with private workers. Only days later, the TSA won its collective bargaining.
Pistole immediately announced his agency would not consider any applications to replace the TSA with private workers not already submitted and indicated his decision was final. While Federal authority on anything deemed to relate to national security will likely crush any serious state attempt to challenge the TSA and its Administrator, Pistole's ruling was on private airports and their security decisions, not on individual state legislatures.
While neither the TSA nor the DHS has spoken directly on whether Arizona can pass a statewide law that clashes with a TSA order, Arizona isn't waiting to find out. The state is testing the idea of enshrining nullification in law. Nullification is a pillar or states rights - the belief that a state may vote to ignore a Federal law it finds invalid or unconstitutional. This session, at least 17 bills, in play in both the Senate and the House, seek to give Arizonans wider powers in refusing to abide by Federal laws seen as overreaching or illegitimate. Leading them all is Lori Klein's SB 1433, a proposal to set up a 12 member committee to review all Federal legislation and decree that both the state and its residents "shall not recognize or be obligated to live under the statute, mandate or executive order."
Democrats contend that Klein misunderstands the concept of dual sovereignty and pointed her to the courts. Klein responded that she is well aware of the availability of the courts as a source of redress for citizens and states who disagree with Washington, but pointed to the cumbersome and expensive process of litigating Federal law as a deterrent to anyone using the system. Her bill specifically says that the only legal opinion Arizona should recognize in overriding its nullification rights is that of the U.S. Supreme Court. While Klein's bill went through second reading on the first of the month and Dial's bill may be finished, America's brief outrage at TSA practices appears to have dissipated in Arizona and elsewhere. For now, it's shoes off and business as usual in Arizona's airports.
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