TSA Showdown Watershed Moment – Supreme Court: Individuals May Challenge Laws Based on the 10th Amendment – Libya: No Life Zone
Paul Joseph Watson
Tuesday, June 21, 2011
A bill that would criminalize invasive TSA pat downs in Texas has risen like a phoenix from the flames, with Governor Rick Perry being forced to include the item on the agenda for the current special session of the legislature, setting the stage for what could potentially become a watershed moment in the battle to peel back a federal power grab that has characterized the advance of big government.
Despite initially shirking responsibility by erroneously claiming that the bill did not have enough support to pass, Governor Perry was forced to place the item on the special session agenda yesterday, meaning TSA workers could face a year in jail or a $4,000 fine if they “touch the anus, sexual organ, buttocks, or breast of another person, even through that person’s clothing for the purpose of granting access to a building or a form of transportation,” according to the text of the legislation.
Under the terms of the Texas Constitution, Perry has the authority to forward bills for the consideration of the special session, and that’s precisely what he did yesterday, announcing, “Legislation relating to prosecution and punishment for the offense of official oppression of persons seeking access to public buildings and transportation.”
Following Perry’s announcement, sponsor of the bill Senator Dan Patrick stated, “The people’s voice has been heard in Austin. Thanks for the literally thousands of calls & e-mails. This is a “Come & Take It Moment” again for Texas… Once again Texas will take a stand that will reverberate around the nation.”
Absent the dirty tricks that shot down the progress of the legislation the first time around, the bill should have no problems in getting enough votes to be passed – the majority of state Senators support SB 29, with a number still undecided and just two against. The schedule for the special session is due to run until June 30, but Perry also has the authority to extend this deadline.
The real test will be how the federal government reacts to the passage of the legislation, a response which is likely to be characterized by two separate arguments.
One – the feds will simply claim that the bill is superseded by the Supremacy Clause of the US constitution, arguing that states cannot regulate the federal government, and will order TSA goons to continue groping Americans. This will kick start a massive states’ rights battle, but TSA workers will still be reticent to abuse their power for fear of lawsuits. However, if they pursue this route, the feds won’t have a leg to stand on. The Supremacy Clause merely states that the Constitution is supreme, not that the authority of the government is supreme. Indeed, if anything the Supremacy Clause works in favor of the anti-pat down bill because it reinforces the protections guaranteed by the fourth amendment against unreasonable searches and seizures.
Two – the government will adopt an altogether more aggressive approach and repeat their threats of financial terrorism by resolving to impose a federal blockade to prevent flights operating out of Texas airports. This tactic was used to kill HB 1937 before it could even reach the Senate last month following the circulation of a letter written by DoJ Attorneys that threatened to cancel all commercial flights in the state. The power of the federal government to impose a de facto “no fly zone” over Texas is non-existent. If this is attempted, Texas airports could simply replace all TSA workers with private screeners and give the feds a symbolic middle finger. What’s more likely to happen is some kind of compromise deal, but TSA agents would still be less likely to carry out grope downs for fear of lawsuits.
Years of growing outrage over TSA grope-downs and naked body scanners has culminated in this momentous showdown. The outcome of this fight will determine the course of this issue for years to come, and will shape whether the TSA becomes a literal occupying army in a Sovietized America, or whether the organization itself and the Homeland Security takeover in general withers and dies.
URGENT – Contact the undecided Senators on this list and urge them to show their support for Senator Dan Patrick’s TSA Anti-Groping bill — SB 29.
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|Written by Michael Tennant New American|
|Tuesday, 21 June 2011 09:30|
The U.S. Supreme Court may have just opened the floodgates to individuals wishing to challenge various federal laws on the grounds that they violate the 10th Amendment. In a unanimous decision, the court ruled that individuals do have standing to make such legal challenges if they can demonstrate that they will suffer harm if the laws they are challenging are applied to them.
The case at hand involved a Pennsylvania woman, Carol Anne Bond, who, upon finding that her best friend, Myrlinda Haynes, had given birth to a child by Bond’s husband, decided to exact revenge. She began by harassing and threatening her former friend. Later she tried to poison Haynes with a caustic chemical by smearing it all over Haynes’s possessions. Haynes managed to avoid all but a tiny amount of the poison, suffering a small burn on her thumb but otherwise escaping unscathed. Getting no help from local authorities in putting an end to this horrific situation, she turned to the U.S. Postal Service, which presumably got involved because her mailbox was one of the things Bond had contaminated. The Postal Service turned out to be far more helpful than the local police: Its surveillance cameras caught Bond in the act, whereupon she was arrested and charged with violating a federal law implementing the 1993 Chemical Weapons Convention.
With the video evidence clearly identifying her as the perpetrator, Bond spent little effort arguing in court that she was innocent of any wrongdoing. In fact, she pleaded guilty but reserved the right to appeal, which she did, on the grounds that the law under which she had been charged exceeded the federal government’s enumerated powers, specifically the Article II treaty power. The appeals court, however, decided that her challenge really fell under the 10th Amendment, which reserves to the states or the people all powers not delegated to the federal government. The court then turned around and ruled that as an individual, not a state, Bond did not have standing to mount a 10th Amendment challenge — the argument the federal government had made.
The Supreme Court chose to take up Bond’s case when she appealed. In an interesting twist, by the time the case reached the Supreme Court, the federal government had actually come to agree with Bond that she did indeed have standing to challenge the law’s constitutionality, albeit not on the grounds of the 10th Amendment (because Bond is not a state government) but on the grounds that it exceeds Congress’ enumerated powers. The court rejected the government’s narrow view and ruled that individuals do have standing to challenge federal laws under the 10th Amendment.
Wrote Justice Anthony Kennedy:
Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.… The individual liberty secured by federalism is not simply derivative of the rights of the States.
An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.
Similarly, Justice Ruth Bader Ginsburg, in a concurring opinion with Justice Stephen Breyer, remarked: “Bond, like any other defendant, has a personal right not to be convicted under a constitutionally invalid law.”
The Supreme Court found that the precedent on which the appeals court, following the lead of other appeals courts, had based its ruling — a single sentence in the 1939 case Tennessee Elec. Power Co. v. TVA — might not even apply to the term standing as it was now understood. But even if it did, the court said, the sentence “should be deemed neither controlling nor instructive on the issue of standing as that term is now defined and applied.”
The court’s decision does not necessarily mean that Bond’s six-year prison sentence will be commuted or that the law she is challenging will be found unconstitutional. It merely means that she now has the right to challenge it. That challenge will take place back in the court of appeals, to which the Supreme Court remanded the case.
Indeed, the law professor who was drafted, so to speak, by the Supreme Court to defend the appeals court’s decision once the federal government more or less came around to Bond’s position, made a good case that the law is constitutional. The Atlantic’s Garrett Epps summarizes it thus:
The statute at issue was passed in fulfillment of a treaty obligation, and is justified by the Treaty Power — long considered broader than Congress’s ordinary domestic powers — augmented by the “necessary and proper” clause. The chemical weapons treaty requires the United States to pass criminal laws against use of these compounds by private citizens. Cutting back on Congress’s power to fulfill treaties could threaten the nation’s foreign relations — and undercut a key purpose for which the Constitution was adopted. [Emphasis in original.]
Whether or not Bond succeeds in getting the courts to overturn the chemical weapons law, the Supreme Court has done liberty a favor by opening the door to individual challenges to federal laws on the basis that they violate the 10th Amendment — an opening that freedom-oriented institutions such as the Goldwater Institute are already preparing to exploit as they battle ObamaCare. On the other hand, Timothy Sandefur of the Pacific Legal Foundation cautions that the ruling could also have a negative effect on state lawsuits against ObamaCare because “the lower courts may interpret this as meaning that individual plaintiffs have sufficient alternative ways of raising arguments against the Individual Mandate.”
Furthermore, the ruling does not clear a path for anyone and everyone wishing to sue to overturn various federal laws on 10th Amendment grounds, as Justice Kennedy made clear:
An individual who challenges federal action on these grounds is, of course, subject to the Article III requirements, as well as prudential rules, applicable to all litigants and claims. Individuals have “no standing to complain simply that their Government is violating the law.” Allen v. Wright, 468 U.S. 737, 755 (1984). It is not enough that a litigant “suffers in some indefinite way in common with people generally.” Frothingham v. Mellon, 262 U.S. 447, 488 (1923) (decided with Massachusetts v. Mellon). If, in connection with the claim being asserted, a litigant who commences suit fails to show actual or imminent harm that is concrete and particular, fairly traceable to the conduct complained of, and likely to be redressed by a favorable decision, the Federal Judiciary cannot hear the claim.
Still, the overall thrust of the ruling is decisively in favor of more individual claims of injury as a result of unconstitutional federal laws, which will certainly come in handy in fighting ObamaCare and myriad other statutes. Whether the courts will find the laws in question unconstitutional remains to be seen. But even if they don’t, there’s something to be said for keeping Uncle Sam on the defensive and keeping his lawyers occupied.