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Austin Liberty Coalition Message Board › Texas HB 1937

Texas HB 1937

Jon R.
Austin, TX
Sent to members of the Texas House Committee on Criminal Jurisprudence,
and to the sponsors of HB 1937, which holds a hearing March 22. We need
everyone to send supporting messages to their members.


I oppose HB 1937 as presently worded. However, the concept of
nullification is valid and important, if done right. I urge the
amendment of HB 1937, to substitute the components at the end of this


The bill by Texas Reps. Simpson, Eddie Rodriguez, Menendez, Kolkhorst,
and Chisum, HB 1937,­
, to make it a state crime for federal Transportation Security Agents
to use certain methods of scanning or inspecting passengers boarding
aircraft, might get applause from the unknowing and unthinking, but it
is poorly thought through, and can only serve to undermine its own
proper purpose.

People need to develop detailed and knowledgeable scenarios for how any
legislation would actually work out.

What happens if an attempt were made to enforce the criminal penalties?
There is a reason why state and local governments do not attempt to
prosecute federal agents for state crimes committed while the federal
agents are on duty. Any such attempts will be immediately removed to
federal court, where they will be summarily dismissed, on the grounds
that a federal agent has official immunity for anything he does while
on duty.­

However, any state agent attempting to enforce such a state criminal
statute would likely face criminal prosecution himself, under 18
111, which provides:
§ 111. Assaulting, resisting, or impeding certain officers
or employees

(a) In General.— Whoever—
(1) forcibly assaults, resists, opposes, impedes,
intimidates, or interferes with any person designated in section 1114
of this title while engaged in or on account of the performance of
official duties; or
(2) forcibly assaults or intimidates any person who formerly served as
a person designated in section 1114 on account of the performance of
official duties during such person’s term of service,

where the acts in violation of this section constitute only simple
assault, be fined under this title or imprisoned not more than one
year, or both, and where such acts involve physical contact with the
victim of that assault or the intent to commit another felony, be fined
under this title or imprisoned not more than 8 years, or both.

Enhanced Penalty.— Whoever, in the commission of any acts described in
subsection (a), uses a deadly or dangerous weapon (including a weapon
intended to cause death or danger but that fails to do so by reason of
a defective component) or inflicts bodily injury, shall be fined under
this title or imprisoned not more than 20 years, or both.

Now there is no constitutional authority for 18 USC 111 on state
territory. Perhaps there should be, but it would require a amendment to
the U.S. Constitution to provide it. However, that won't stop federal
agents or courts from enforcing it. The odds are not good for a
judicial challenge to it, and since the decision in Massachusetts
the federal courts refuse standing for a state to appear in federal
court to protect the rights of its citizens. A state may pay the legal
costs of a citizen, but not represent him.

also need to be clear on the constitutional issues involved in the
practices of the TSA agents. The U.S. government does have
constitutional authority to operate inspection stations and require
travelers to pass through them, as a way to enforce its lawful taxes
and regulations. Travelers do not have a reasonable expectation of
privacy for their baggage or cargo in such a situation. They do have
for intrusive physical inspection of their bodies, and for such
physical bodily inspection a warrant is needed, supported by an
affidavit of probable cause. However, there is a gray area for
scanners, depending on what technology is used. Backscatter x-rays
inflict a hazard on bodies that passive terahertz scanners do not,
since they detect only natural emissions from the body. Inspection by
pattern-recognizing machines may be acceptable, whereas visual
inspection by human agents would not be. The boundaries can be subtle.

We need more than gestures or protests on this and other federal
usurpations. Legislation that pleases some constituents on first
impression, but which has no chance to actually work, is not the way to
spend scarce legislative or activist resources.

To those who might argue that the feds would need the cooperation of
state agents to remove federal agents from state custody, because it
would be unwilling to use force, they are underestimating the feds. The
federal government would use force, not perhaps initially to make state
agents comply with its orders, but just to remove any federal agents
from state custody. This kind of thing has been done, and the feds are
fully prepared to overwhelm state and local agents with superior
forces. All the President has to do is call out the National Guard,
which is part of the military and subject to his orders, and if that
weren't enough he would use the rest of the military. This scenario has
been wargamed many times and they are well-prepared.

This approach is fundamentally flawed.The only approach that can work
within our existing legal framework is statewide passive
non-cooperation and civil disobedience. It may not work to directly act
against federal agents, but withholding cooperation in other areas can
raise the costs of the U.S. government so much that it may decide to
back off rather than incur them.

An alternative approach that might actually work is presented at­


substituted follows:

Federal Action Review Commission

Proposed Components:

1. Commission. Establish a "Federal Action Review
Commission", as a kind of grand jury, to meet frequently with rotating
membership drawn from a pool of constitutionally knowledgeable persons,
excluding public employees, contractors, or pensioners, active lawyers,
or current members, selected at random by a sortition process. Such
commission shall be empowered to review the constitutionality of
current or proposed federal legislation, regulations, practices, rules,
decisions or other actions, and if it finds such actions to be
unconstitutional, to issue an edict, with the force of law, requiring
that no state or local officials, employees, or contractors cooperate
in the enforcement of such usurpation, and urging state citizens to
also refuse to cooperate. This Commission would be established by an
amendment to the Texas Constitution.

2. Structure and procedure. The Commission shall consist of
23 members, who shall serve for staggered terms of 6 months each,
except initially. The selection pool shall be filled each year with one
nominee from each of the local grand juries throughout the State. The
Commission shall elect its foreperson, adopt rules of procedure, and
meet for at least one hour once a week, with a quorum of 16, and a vote
of 12 required to issue a report. It may only report findings of
unconstitutionality. It shall base its findings on a presumption of
nonauthority, and require strict proof of constitutionality from
logical and textual analysis and historical evidence, not court
precedent. It shall be open to direct complaints of the
unconstitutionality of federal actions from any citizen, subject only
to orderly scheduling which it shall prescribe. It shall have the power
to subpoena witnesses, and its deliberations shall be secret, except
that it may disclose anything in its reports. It may authorize criminal
prosecution by issuing an indictment to any person, not necessarily a
lawyer, upon a finding that the court cited in the indictment has
jurisdiction and that evidence of guilt is sufficient for trial.

3. Penalties. State and local officials, employees, and
contractors shall be duly notified in writing of such edicts within ten
days and shall have twenty days to comply or be subject to termination
after one written warning and a second failure to refuse to cooperate
with federal officials and agents. No official, employee, or contractor
shall be penalized for compliance with an edict of the Commission.

4. Funding. A state fund shall be established to pay for
private legal counsel and provide financial support of state citizens
and agents who refuse to cooperate with unconstitutional federal
actions, with the intention to obtain judicial decisions that support
the unconstitutionality of the federal actions, and hold the resisting
citizen harmless.
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