Saturday, July 17, 2021

Fugitive Legislators

Against the backdrop of contentious faceoffs throughout the United States on the subject of election laws, a group of Democrats from the Texas state legislature (specifically, its House of Representatives) recently fled the state in order to hinder the Texas legislature's efforts to enact election-related legislation.  Their excursion has received a great deal of sustained media attention from the start, so readers are presumably aware that the departure of these legislators leaves the Texas House of Representatives without the quorum (the presence of no fewer than two-thirds of the members of the House) that the Texas Constitution requires it to have in order to proceed with substantive legislative business.  This does allow them to keep the bill from moving forward for the time being, but if Texas Governor Abbott keeps his promise to continue calling special sessions of the legislature until the election legislation is enacted, the "quorum-busting" strategy of Texas Democrats can only obstruct action on that legislation for as long as enough of these fugitive representatives remain willing and able to stay out of their home state of Texas.  I don't think that their strategy is limited to denying the Texas House of Representatives a quorum indefinitely, and at some point, the representatives will undoubtedly want to return to Texas.

I do not know when that time will come, but the aspect of all of this that caught my attention (which is not to say that I do not think that what becomes of election legislation makes a difference) is that Governor Abbott has threatened to arrest the legislators when they return to Texas.  Now, like most of the U.S. state constitutions, that of the State of Texas does empower both houses of its legislature to compel the attendance of their own absent members.  The way the Texas Constitution phrases its grant of this power to the houses of its legislature, it might appear to grant them a more or less open-ended power -- provided that the grant is read and contemplated in isolation, ignoring all other relevant considerations (including everything else in the Texas Constitution and in the United States Constitution).  Article III, Section 10 of the Texas Constitution reads, "Two‑thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may provide."  If everything apart from Article III, Section 10 of the Texas Constitution were to be ignored, that grant could very reasonably be understood to extend so far as to empower the Texas House of Representatives or Senate to have its own absent members arrested with the objective of either punishing a member for being absent (by inflicting "penalties") or directly compelling the member's attendance by forcibly transporting the member to the state Capitol.  (Supposing that this grant of power does extend that far, I still question the propriety, if not the constitutionality, of the governor of the state having a role in it.)  After all, Section 10 contains nothing that identifies any limits (or suggests that there are any limits) to the discretion it allows to either house in selecting the "manner" or the penalties for which "each House may provide."

However, of course, that grant does not exist in isolation; it is not independent of the rest of the Texas Constitution or of the United States Constitution, and there is a part of the Texas Constitution that is so critically relevant to Governor Abbott's threat that I find it surprising that I haven't heard or read any mention of it by anyone else, yet.  The Texas Constitution, like most of the state constitutions in the United States (and the United States Constitution, and the Articles of Confederation before it), prohibits the arrest of members of its legislature (unless for treason, felony, or breach of the peace) while the legislature is in session.  Article III, Section 14 of the Texas Constitution provides, "Senators and Representatives shall, except in cases of treason, felony, or breach of the peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same."  If the fugitive legislators have committed treason, felony, or breach of the peace, the legislature being in session would not present a legal obstacle to arresting them for that reason (provided that they are within the territorial jurisdiction of Texas at the time of the arrest).  As far as I am aware, however, nobody has accused them of any of these*.  Unless and until that changes, Governor Abbott must comply with his state's constitution and keep his hands off of the legislators.  (Also, even as I say this, I think that a "quorum-busting" strategy is inappropriate other than in extreme situations; legislators are elected to participate in the legislature.)

A Reminder: Neither disliking a person nor disliking a person's political views or activities is a justification for intruding upon and violating the person's right to liberty.

* Some people (who can easily be found on the Internet) call almost everything "treason".  We can safely ignore whatever such people might have said about the fugitive legislators.

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