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Journal of Homeland Security and Emergency Management

Editor-in-Chief: Renda-Tanali, Irmak

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Texas takes on the TSA: The Constitutional Fight over Airport Security

Cali M. Ellis
  • Corresponding author
  • University of Michigan, 5700 Haven Hall, 505 South State Street, Ann Arbor, MI 48109-1045, USA
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/ Michael C. McDaniel
Published Online: 2013-04-19 | DOI: https://doi.org/10.1515/jhsem-2012-0068


Since 9/11, air transportation has been one of the most important and closely watched areas of homeland security under federal control. Despite this centralization of authority, some states have begun to question some of the policies enacted by the Transportation Security Administration (TSA). In 2011, Texas passed legislation that would have criminalized TSA officers for carrying out such policies, specifically enhanced pat downs of airport travelers. In light of threats from the Department of Justice, Texas ultimately backed down from the legislation, but the legal arguments made by participants on both sides remain relevant to future conflicts between state and federal authority on homeland security. The events in Texas are particularly interesting because they make public the tension between citizen preferences for security and civil liberties, highlighting the role of federalism in the homeland security domain. Using legal analysis, we find that federal power in the realm of aviation security given by the Constitution’s Supremacy Clause is less clear-cut than generally argued. Therefore, Texas’ attempt to assert its authority in this domain was not necessarily legally unsound.

Keywords: civil liberties; tenth amendment; transportation security administration; United States


About the article

Corresponding author: Cali M. Ellis, University of Michigan, 5700 Haven Hall, 505 South State Street, Ann Arbor, MI 48109-1045, USA, Tel.: +310-683-2149, Fax: +810-752-1847, e-mail:

Published Online: 2013-04-19

Published in Print: 2013-01-01

Granted, it’s a blog, which sacrifices the depth of the discourse for a quick response, but the TSA’s response is not as nuanced as this issue deserves: “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” (Transportation Security Administration 2011).

Of course, the presence of multiple airport security laws tailored to the preferences of each state undermines the unifying purpose for which the TSA was created. The presence of a weak link could be exploited by terrorists, thus changing the public’s perception of the costs and benefits of intrusive airline security procedures.

As the dissent notes, however, the commentators have suggested as early as 1954 that nationally elected officials can act as guarantors of constitutional federalism, but the dissent further suggests that then extant reasons for “national action” are no longer valid. On prominent commentator referred to the decision as the “second death of federalism” (Van Alstyne 1985).

First decided in 215 F.3d 986 (9th Cir. 2000) was reversed, 253 F.3d 359 (9th Cir.) and the opinion vacated, 266 F.3d 979 (9th Cir. 2001).

Citation Information: Journal of Homeland Security and Emergency Management, Volume 10, Issue 1, Pages 209–229, ISSN (Online) 1547-7355, ISSN (Print) 2194-6361, DOI: https://doi.org/10.1515/jhsem-2012-0068.

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