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Journal of Homeland Security and Emergency Management

Editor-in-Chief: Renda-Tanali, Irmak, D.Sc.

Managing Editor: McGee, Sibel, Ph.D.

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

1 / Michael C. McDaniel2

1University of Michigan, 5700 Haven Hall, 505 South State Street, Ann Arbor, MI 48109-1045, USA

2Thomas M. Cooley Law School Lansing, MI, USA

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:

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, April 2013

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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

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