Texas Supreme Court Lifts Restraining Order Protecting Democratic Legislators from Arrest…

Yesterday, we discussed the order of State District Judge Brad Urrutia to block the arrest of House Democrats who fled the state to prevent a quorum to pass election reforms in a type of flight filibuster. It did not take long for Urrutia to be reversed. Last night, the Texas Supreme Court lifted the temporary restraining order. The decision has not only exposed the Democrats to arrest but it has exposed another claim of bias against the PolitiFact, which lambasted Sen. Ted Cruz (R., Tx) who claimed that the legislature clearly had the authority to order such arrests.

I previously discussed both the state lawsuit and a poorly written and poorly conceived federal filing.

The earlier discussion noted that the authority of the Texas legislature to compel the appearance of members (which is the same as the provision in U.S. Constitution) is expressly stated in the state constitution. While the legislators raised creative arguments based on the limits imposed of criminal arrests (and arresting officers) generally, the express authority stated in the constitution rebutted such claims. Nevertheless, there is virtually no case on the provision, which has (thankfully) been rarely used.

The lack of case law was at the heart of the “fact check” of the PolitiFact.  Such fact checks are often challenged as biased, including the well-known fact checking at the Washington Post (here and here). Such objections should be distinguished from complaints over distorting backgrounds, history history, or the law. Rather, these are factual claims including claims made in “fact check” column. Many of these articles come in pieces with a clear political slant against conservatives, including clearly false accounts.

That bring us to the latest such example. PolitiFact ran a piece basically calling Cruz a liar for his saying that there was “clear legal authority” for the order to arrest the members. The Post said it was clearly “false” when it was not. The Post has relied word “clear” as the basis for its categorical denial. That was where the bias was clear.

The Post is correct that there is virtually no case law on the provisions in either the federal or state constitutions. However, Cruz is right to claim that there is clear legal authority if he was relying on the constitution.

The legislature has relied on that authority for its own rule allow for a Motion for Call of the House, directing the House’s sergeant-at-arms to order state police to force the wayward members back to the floor. Rule 5 (Sec. 8) specifically refers to an “arrest”: “All absentees for whom no sufficient excuse is made may, by order of a majority of those present, be sent for and arrested, wherever they may be found.”