Thought for state and local legislators
 

I mentioned this in another thread, but it's probably buried pretty deep. I applaud those in state and local legislatures trying to take a stand and enact laws banning the NoS from airports. However I fear it to be a symbolic gesture at most, the chances of success are minimal, and it will take a long time and spend even longer in court. So here's my alternative legislation proposal:

"It shall be illegal in the city/state of XXX to operate an x-ray device on human beings if not a trained and licensed medical professional with YYY certifications, under the direct supervision of a physician/dentist/other doctor allowed to have x-ray machine whose license is in good standing with the city/state. Furthermore, all x-ray equipment used on humans must be certified by ZZZ regulatory agency and calibrated every XYZ months."

In effect, every TSO on the NoS must have medical training and every checkpoint using the machines would require a doctor or dentist or they'd be in violation of city/state health ordinances. DHS case is much weaker, in my opinion, under this scenario than proposed legislation banning the machines all together.

The Federal government isn't subject to state/local laws.

You are correct.

For example, had the California marijuana law passed earlier this month it would have still technically been illegal since federal law (and regulations) always trump state/local law.

A lot of cities pass non-binding resolutions like the above, but they have no legal standing.

See: http://www.law.umkc.edu/faculty/proj...preemption.htm

Want to bet?

The federal government can only operate outside state laws where it has constitutionally-granted authority.

"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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding..."

-Article VI, Section 1, Clause 2, US Constitution


"A state statute is void to the extent that it actually conflicts with a valid Federal statute."

- USSC, Edgar v. Mite Corporation, 457 U.S. 624

First bit is pretty clear. Second bit, the laws of the united states can't be made where the united states don't have authority.

They have the authority. Period. End of story.

Trust me, I am a federal lobbyist and hold a degree in Constitutional Law from one of the most liberal colleges in the country (ie. I have heard your argument and it doesn't hold merit).

Is there a conflict here though? TSA installed the nudeoscopes without promulgating any regulations. What federal law would JumboD's proposal conflict with?

Maybe in common practice, but not in doctrine.

.....

Your smoking example is flawed because the lack of a law isn't a "conflict". Whether the airport is Federal property or not isn't relevant either.

However, I think the supremacy issue is a bit more complex than Lobbyist is acknowleging. The classic aviation-related example is that localities can't pass laws that purport to regulate flight paths because that conflicts with the Federal power to regulate aviation. But I think they can issue time curfews and completely close an airport, if they so choose. So it's not absolute.

In the screening arena, there's no question that the legislation creating the TSA is sufficient to make unenforcable any local laws that would affect screening, but only those part of screening that were "valid". If a court were to hold that the screening was unconstitutional, then the law is not "valid". For example, if a jurisdiction were to make operating an AIT a felony and charged a TSO under that statute and the court ruled as part of that prosecution that the AIT was a unconstitutional search, that prosecution may well succeed. IANAL, of course.

I understand what you're saying, but here's my question: Wouldn't there have to be legislation explicitly sanctioning NoS and allowing any TSA screener to operate them in order to invalidate such a state law? Congress certainly hasn't passed such.

The difference with marijuana that I see is that there are federal laws prohibiting its sale, possession or use. With the NoS, it seems more as though TSA was never told they couldn't do it, so they just did barring a law ruling one way or the other.

Seems more like the case I heard about several years ago (don't remember all the details) where the federal government passed a law that law enforcement officers from any state could carry their weapons in any other state. New York didn't like that, so they passed a law (under which a NJ cop was arrested, if I recall) stating that only officers employed by a NY agency could carry hollow point ammunition. It effectively negates the federal law (since to my understanding that's what most cops carry) but it doesn't expressly conflict with it. I don't know the disposition of that particular case, however.