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Did Senator Paul’s TSA Detention Violate the Arrest Clause?

Senator Rand Paul was “detained” earlier today by the Transportation Security Administration (TSA) after the Senator refused to consent to a full body pat down at the airport in Nashville, Tennessee. Senator Paul was at the airport to catch a flight to Washington, DC.

This raises an interesting question under the Arrest Clause, art. I, § 6, cl. 1, which provides that Senators and Representatives “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their respective Houses, and in going to and returning from the same.“

For these purposes, I believe that the Senate has been in session since January 3 (notwithstanding some debate about its status for purposes of the Recess Appointments Clause) and, in any event, the Senate apparently is holding votes this afternoon (so Senator Paul alternatively would be “going to” the Senate’s session). However, as we have discussed before (see here and here), the exceptions to the privilege against arrest have been construed so broadly as to leave it with no application to ordinary criminal arrest. Since the practice of arresting people in civil cases no longer exists, this leaves the privilege with little practical import.

In this case, however, it does not appear that TSA was purporting to detain Senator Paul for any criminal violation.  Indeed, it is not clear that TSA had any authority to detain him at all (which is perhaps why TSA is denying that he was detained). I don’t think that the Arrest Clause requires TSA to allow Members of Congress to board airplanes without complying with security regulations. But if TSA agents otherwise sought to prevent Senator Paul from leaving the airport or otherwise to detain him, that may be a different matter.

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