Round two of the battle for travel freedom is well underway.

The first round, which garnered national attention in the fall of 2010, focused primarily on the TSA implementing new procedures…pat downs, body scanners….and the public outcry against it….boycotts, protests, calling congress to demand change.

But, as the public response failed to stop the scanners and searches, round two has moved to state legislatures around the country. Most prominently, Texas, where the state house just passed a bill banning TSA searches without probable cause. Click here to read the Tenth Amendment Center’s report on the bill.

This time, the TSA is on the defensive, and published an official statement about the Texas bill on their blog:

What’s our take on the Texas House of Representatives voting to ban the current TSA pat-down? Well, the Supremacy Clause of the U.S. Constitution (Article. VI. Clause 2) prevents states from regulating the federal government.

The problem here? The statement is false. Ignorance from the TSA is unlikely, so I’ll call a spade a spade. They’re lying.

The supremacy clause says nothing of the sort. Here’s the full text:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

So, in simple terms, what does the supremacy clause mean? Just what it says. The constitution is supreme. And any federal laws made in line with the constitution is supreme. Nothing more, nothing less.

Notice there’s not one single word in the actual text that says anything about states regulating the federal government as the TSA claims. They’re just making things up as they go.


In the constitution, The federal government is authorized to establish post offices. So if a state tried to establish their own, which would put it into conflict with the federal post office, the supremacy clause would rule that the state was in the wrong.

On the other hand, the first amendment says, in part, that congress shall not make laws restricting free speech. So, if a state law was established to give extra protection to the free speech rights of people in the state, and the federal government tried to restrict that freedom with an agency action, regulation, or law, the Feds would be in the wrong.

Why? Because the federal law restricting free speech would not be “in pursuance of” the constitution. And, as stated above, it’s the constitution, not all federal laws, which are supreme. The only federal laws which are supreme are constitutional ones.


Federal searches, as the 4th amendment makes clear, have certain requirements. Probable cause is one of them. Here’s the text of the 4th:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

There is no wiggle room here. No warrants shall issue. None. The 4th amendment doesn’t offer any exceptions. Period.


So, when the federal government doesn’t follow such straightforward rules, what should be done? In the Virginia Resolution of 1798, James Madison explained the role of the states in such a situation. He wrote:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. [emphasis added]

So, when the federal government violates your rights by refusing to abide by the limits put on it in the constitution, it’s your state’s duty to stand up and do it instead.

The verdict? Texas is in the right, and more states should join in now. The TSA…not even close.


What’s the next lie that the TSA will tell us? Not sure, but from this one, it might be something just as absurd, like…”the 1st amendment says that states can’t interfere with TSA restrictions on complaints during wartime.”

The kicker here is that under the founders’ vision for the constitution – where the federal government is authorized to exercise only those powers delegated to it….and nothing more – the TSA wouldn’t even exist. For an unconstitutional agency to lie about Constitutional matters is beyond absurd, and it must be stopped. Other states are considering bills like in Texas – and sources close to the Tenth Amendment Center tell us to expect at least 10 or more to do so in 2012.

For a more detailed explanation of the supremacy clause, along with some historical perspective from the founding era, read Professor Brion McClanahan’s article, Who’s Supreme? The Supremacy Clause Smackdown.

Michael Boldin