But the legal landscape surrounding the standoff is murky, involving questions of state authority, federal jurisdiction and separation of powers, says Dan Urman.
Democratic state lawmakers in Texas have been absent for more than a week after they left to deny Republicans a quorum needed to redraw the state’s electoral maps.
Democrats are aiming to stall until the special legislative session ends on Aug. 19. But Republican Gov. Greg Abbott says he plans to extend the session “indefinitely,” potentially leading to a drawn-out and costly standoff.
What’s more, Abbott and his Republican allies have vowed to arrest the group of lawmakers, including threats to mobilize the FBI to arrest and bring them back to Texas. Illinois Gov. JB Pritzker, speaking to Kristen Welker on NBC’s “Meet the Press,” suggested that it would be illegal for the FBI to arrest those Texas lawmakers who left for his state.
The legal landscape surrounding the standoff is murky, involving questions of state authority, federal jurisdiction and separation of powers, says Dan Urman, director of the law and public policy minor at Northeastern University, who teaches courses on the Supreme Court.
So, can Texas Republicans legally force their Democratic colleagues to return? We asked Urman to explain.
His comments have been edited for brevity and clarity.
Probably not; but that doesn’t mean the Kash Patel-led FBI will remain uninvolved. Like so many things today, it’s unprecedented. Disputes like this have historically been state matters, and the fact that it involves a non-criminal punishment — a fine of $500 per day — makes the FBI involvement seem inappropriate. The FBI has very broad authority, but its central role is investigating federal crimes, which don’t appear here.
Under federal law, the FBI can help local law enforcement to pursue fugitives fleeing to avoid felony prosecution or other criminal proceedings, which are not at issue. The governor of the state where legislators have fled must agree to return them, and Gov. Pritzker has suggested he won’t. Like so many things, this dispute could end up in federal court, but federal law and precedent suggests that the non-criminal nature of this dispute means the FBI (and federal government) should not be involved.
There are a host of laws and constitutional provisions at play, most of them Texas-based.
The Texas Constitution sets out the quorum requirement, and the Texas Supreme Court has said that the Texas Constitution allows “quorum breaking” and “quorum forcing.” The former is what the Texas Democrats have done by leaving the state. The latter comes from Texas House of Representatives rules (Rule 5). The sergeant at arms in Texas can send for the absent members and “secure and retain” their attendance. But our constitution built a system where Texas officials can’t enforce Texas law out of state.
There’s also the pending petition by Gov. Abbott to declare that (state) Rep. (Gene) Wu “abandoned” his office by leaving the state in violation of the Texas Constitution. Texas Supreme Court precedent suggests that this is an easy decision for the Court. Cases say this should only involve executive branch officials, not members of the Texas legislature. Even if it did apply, Texas Supreme Court cases suggest that quorum breaking does not amount to “abandonment.”
The relevant U.S. constitutional provision is the extradition clause. Importantly, there isn’t a specific way to enforce the extradition clause, and it applies to people accused of crimes, not civil violations/fines.
He can call repeated 30-day special sessions, and keep it going, but without 12 Democrats returning to Texas to provide a quorum, he will not be able to change the legislative districts in Texas.