Texas governor and AG want to remove political opponents by fiat, to bolster GOP chances in the 2026 midterm

Why did Texas legislators flee?

According to The New York Times, Democrats left the state to block an effort by President Trump and Gov. Abbott to redraw the state’s U.S. House maps to swing five of Texas’s 38 districts from Democratic to Republican ahead of the 2026 midterm elections. Dozens of Democratic members of the Texas House used a tactic called “breaking quorum,” denying Republican State House leaders the 100 members they need to convene.

“Breaking quorum,” has been used before. Texas lawmakers staged similar walkouts in 1870, 1979, 2003, and 2021. The 1979 effort, which was meant to block a proposed change in the date of the presidential primary, is the only one of the four walkouts that ultimately succeeded. Oregon and Indiana, two other states that require a two-thirds legislative majority for a quorum, have also had walkouts.

What have Republicans done in response?

On Monday, after the speaker of the Texas House issued civil arrest warrants for the runaway Democrats, Mr. Abbott ordered the Texas Department of Public Safety to track them down.

Senator John Cornyn, Republican of Texas, asked the F.B.I. to assist Texas authorities in their “efforts to locate or arrest” the Democratic lawmakers.

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Mr. Abbott has also filed a lawsuit asking the Texas Supreme Court to remove Mr. Wu from office, arguing that his “willful refusal to appear” should be construed as a “deliberate abandonment of office.” Under state law, the court can remove legislators from office using a legal instrument called a writ of quo warranto if it finds they have “forfeited his or her office by abandonment.”

Protected speech or dereliction of duty?

Despite the history of breaking quorum, the federal courts have never conclusively answered one key question: Is it protected by the First Amendment’s guarantee to free speech and free assembly, and perhaps other constitutional rights?

In a 2021 federal lawsuit, a group of Texas legislators argued that it was, but the federal court dropped the case without ruling after the plaintiffs failed to pursue it. In the state courts that same year, a county judge issued a restraining order barring the arrest of lawmakers who broke quorum, but that order was quickly blocked by the Texas supreme court.

In its 2021 ruling, the Texas supreme court offered a split decision, seemingly upholding the legality of quorum breaks under the state constitution, as well as civil warrants to end them. “Just as article III, section 10 enables ‘quorum-breaking’ by a minority faction of the legislature, it likewise authorizes ‘quorum-forcing’ by the remaining members,” the court wrote.

 

So the ruling appears to support both the Democrats’ argument that breaking quorum is not the same thing as abandoning their office, but also the Republicans’ argument that the quorum breakers can be subject to arrest.

“Simply denying a quorum is something that has been used for 200 years on and off throughout government,” said Joe Jaworski, the former mayor of Galveston and a Democratic candidate for Texas Attorney General next year.

If the quorum breakers hold fast and the fight ends up in the courts, the judicial terrain might afford Mr. Abbott some advantages. At the state level, all nine justices on the Texas supreme court are Republicans, and six were initially chosen by Mr. Abbott. In the federal courts, Texas falls under the jurisdiction of the U.S. Court of Appeals for the Fifth Circuit, the most conservative appeals court in the country, where six of the 17 judges are Mr. Trump’s nominees.

Can Democrats be arrested?

Under most circumstances, the F.B.I. lacks the authority to enforce state or local laws.

David Froomkin, a law professor at the University of Houston, said that it would be “highly inappropriate” for federal law enforcement, such as the F.B.I., to get involved when no federal law has been broken.

“As far as I’m aware, there’s no allegation of a violation of a federal crime,” he said. “They should not be involved in resolving what is a dispute about state law and the state constitution.”

But Daniel Richman, a professor at Columbia Law School and former federal prosecutor, said it was possible that the F.B.I. could argue it had some basis for investigating or even arresting the legislators under a federal law that bars interstate travel to avoid legal process. Any arrests under that law would then be scrutinized by federal judges in the district where the arrest occurred, Mr. Richman said.

The case is clearer for state police acting within Texas. The Texas high court said in 2021, “Although arrest of absent members may seem an extreme step to some observers, the fact remains that if the absent members are sufficiently motivated to resist, the quorum-forcing authority given by the constitution to the present members can only be effectuated by physical compulsion.”

Can state politicians be removed from office by fiat?

The legal actions being pursued by Mr. Abbott and Texas’s attorney general, Ken Paxton, to remove Democratic state representatives from office have little legal precedent, something Mr. Paxton has conceded.

“It’s never been done,” he said in an interview on Newsmax on Wednesday.

Mr. Froomkin of the University of Houston said the Texas Constitution makes clear that the State House makes its own procedural rules and has authority to impose penalties. The involvement of the executive and the judicial branch in trying to remove members would raise serious separation of powers issues.

“I have no reason to believe that the supreme court would give any credence to these outlandish theories,” he said.

“The stakes are really grave here,” he added, referring to the effort by Mr. Abbott to remove the leader of the walkout, Mr. Wu. “We have a chief executive challenging the legitimacy of his political opponents in the legislature simply because they’re making use of legislative rules to delay his agenda.”

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