The Texas legislature shows no sign of compromising their position on security pat-downs as defined by the passage of House Bill 1937. The bill’s sponsor David Simpson described the intent with the following statement:
“HB 1937 would make it a criminal act for security personnel to touch a person’s private areas without probable cause as a condition of travel or as a condition of entry into a public place. This bill is not intended to contravene any federal statutes currently in place.”
In a press release he further elaborated by stating that, “HB 1937 is a significant step forward in the protection of our constitutional and civil liberties. Groping innocent citizens does little to enhance security but it does much to reduce our freedom and dignity. I am very thankful that members of both parties have joined together to defend our citizens’ dignity against the TSA’s (Transportation Security Administration) egregious screening methods.”
Constitutional challenge looming
The bill now moves to the Texas Senate where it appears to also have broad support.
While the Supremacy Clause of the US Constitution in general limits and subjugates the authority of the states to that of the Federal government, the Texas bill challenges that authority citing the 10th amendment, which restricts some Federal powers and limits their scope.
Supporters of the Texas bill argue that the kind of intrusive searches conducted by the TSA are a violation of Constitutional principles and fall outside of the powers granted to the Federal government, making them vulnerable to state law.
The Texas legislature seems determined to press a constitutional showdown that will only be settled by the US Supreme Court. The bold action has inspired other states to also create legislation challenging the TSA’s authority.
Challenge complex, outcome unclear
Precedent may favour the Federal statute given the fact that airport security in the US is framed as one aspect of the “war on terror”, putting it into the realm of national security, which is a legitimate function of Federal activity. But the Texas bill does not attack the authority as much as it questions the approach and methods employed.
Nonetheless, this is an unusual challenge to the established order and could gain momentum as other states take up the issue. While the final outcome is far from clear, it is obvious that new TSA practices have greatly escalated the debate.
Visa policy also called into question
And in a parallel move, also related to 9/11 and its aftermath, the US Travel Association has issued a report that takes the US government’s restrictive visa policies to task and contends that considerable economic damage has been done by the policy.
The group notes that even though some relaxation of the original policy has occurred, limiting the need for visas by many Western nations, the restriction still applies to the burgeoning and newly affluent residents of China, India and Brazil.
The study cites the lack of convenient consular access, cost and seemingly arbitrary outcomes that are experienced by would-be US visitors. The group’s president and CEO, Roger Dow, noted in a Las Vegas speech that in the first decade of the new century, international arrivals globally rose 40% but only 1% in the US, reducing the US market share from 17% to 12%. He said that those active in US travel refer to the period as a “lost decade”.
In response, the USTA has offered a “Smarter Visa Programme” designed to facilitate the needs of prospective US visitors. The proposal has four broad recommendations.
First, they suggest that the State Department become more attuned to market demands and growth, especially regarding the three countries named, understanding that their role as a gatekeeper has far-reaching effects.
Second, increase the number of staff available to deal with applicants for non-immigrant visas as well as overhauling the entire process. One simple suggestion is that the in-person interview be waived for those renewing an existing visa.
Third, they suggest that the agencies involved improve their planning and have a clear sense of the economic cost of the current procedures.
Finally, they advocate that the Visa Waiver Progamme (VWP) be expanded to include additional nations; specifically India, China and Brazil, working with their national governments to move towards membership in the VWP.
The travel sector is one in which the US still has a trade surplus but this is increasingly at risk as travel shifts to developing nations where citizens face the challenges of obtaining a US visa. They believe that well over 100,000 potential visitors were unable to attend meetings and trade shows in the US due to visa delays and complications.
Time for rethink
After almost a decade of restrictive policies instituted following 9/11, it appears that more groups are assessing the cost/benefit ratios that have resulted from those actions and increasingly find both bad policy and bad math.