But They Can Still Vote While Intoxicated, Right?

According to several news accounts in the last week, a Minnesota student group is working to end “legislative immunity from drunk driving arrests.” Apparently someone believes that Minnesota state legislators are immune from arrest for DWI based on Article IV, section 10, of the Minnesota Constitution, which provides that “members of each house in all cases except treason, felony and breach of the peace, shall be privileged from arrest during the session of their respective houses and in going to or returning from the same.”

This language is nearly identical to the Arrest Clause in the U.S. Constitution, from which it is undoubtedly derived. I am pretty sure that a federal legislator would have no Arrest Clause protection from a DWI arrest, and it is unclear why anyone thinks that a Minnesota legislator would be entitled to assert such a privilege.

Except that the professor for the students in question says she “witnessed a clearly drunken legislator last year bragging about his immunity from DWI arrests in a St. Paul bar last year.”

Well, how much more proof do you need?

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.

Wisconsin and the Meaning of the Arrest Clause

The Wisconsin Senate has passed a resolution that requires the majority leader to “issue an order to the sergeant at arms that he take any and all necessary steps, with or without force, and with or without the assistance of law enforcement officers by warrant or other legal process as he may deem necessary in order to bring [an absent] senator to the senate chambers so that the senate may convene with a quorum of no less than 20 senators.”  This action has led to some highly misinformed speculation regarding the meaning of the arrest clause, a feature of both the U.S. and Wisconsin constitutions.

The arrest privilege protects members of a legislature from arrest, except for “treason, felony and breach of the peace,” during the session of the legislature and the time during in which they are traveling to and from such session.  The privilege is an ancient one– Josh Chafetz dates it back to at least 1340, when it was asserted by the House of Commons to gain release of a member imprisoned by royal authority.  As Chafetz notes, “the function of the privilege was to protect the Houses against all outsiders” so as to ensure that they “could properly fulfill their constitutional role.”  See Democracy’s Privileged Few 111-12.  In other words, it is designed to ensure that legislators are not prevented by courts or other outside parties from attending and participating in legislative sessions.

As Akil Amar and Neal Katyal note in a 1995 law review article, modern cases have given the arrest clause such a narrow construction as to make it a “virtual nullity.”  They suggest, however, that a broader interpretation of the clause that once prevailed may be more consistent with the original understanding. Specifically, they argue that “arrest” may be “understood more functionally as extending to various civil cases that interfere with– that arrest– a person’s performance of her duties in public office.”  In support of this view, they cite, among other things, an 1840 decision of the Wisconsin Supreme Court which held that the privilege should be given a “liberal construction” to ensure “the protection of the rights of the people that their representative should be relieved from absenting himself from his public duties during the session of congress.”

Even at the time when the privilege was given its broadest reading, however, there appears to be no case or commentator suggesting that the privilege would in any way inhibit a legislature from arresting its own members.  Among other things, such an interpretation would render unconstitutional longstanding rules and practices of both the U.S. House and Senate.  For example, a House rule provides that in the absence of a quorum, “a majority of those present may order the Sergeant-at-Arms to send officers appointed by him to arrest those Members for whom no sufficient excuse is made and shall secure and retain their attendance.”

Moreover, applying the arrest privilege to arrest by the legislature would stand the purpose of the privilege on its head.  Rather than protecting against interference by outsiders that might prevent the legislature from fulfilling its functions, or prevent individual legislators from performing their constitutional duties at a session of the legislature, it would now prevent the legislature itself from ensuring that it has a quorum to conduct its business and would empower individual legislators who wished to absent themselves from performing their duties.  It would also fly directly in the face of the quorum clauses of the U.S. and Wisconsin constitutions, which authorize each house to “compel the attendance of absent members, in such manner, and under such penalties, as each house may provide.”  There is simply no warrant (so to speak) for such an interpretation. 

Did Senator Craig Breach the Peace?

Some commenters on The Volokh Conspiracy – – have suggested Senator Craig could have asserted a constitutional privilege in connection with his arrest for disorderly conduct charges based on Article I, Section 6  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 ….”  The question arises because the disorderly conduct charge is a misdemeanor, not a felony (and obviously not treason), which arguably did not constitute “breach of the peace” in the sense of involving violence or the threat of violence.  

            The Supreme Court, however, has held that the phrase “treason, felony and breach of the peace” as used in the Arrest Clause was a  common-law term of art that includes all criminal offenses, including misdemeanors that involve no element of force or violence.  WILLIAMSON v. U.S., 207 U.S. 425 (1908)  Although Williamson involved a serious (but arguably non-felonious) crime, subordination of perjury, its broad language has been understood to limit the privilege embodied in the Arrest Clause to arrests in civil cases.  LONG v. ANSELL, 293 US 76 (1934)  Since the practice of arrest in civil cases (eg, arrest of a debtor until a debt is satisfied) is largely if not entirely obsolete, the Court’s rulings have left the Clause with little practical effect.  

            Although there may remain an issue as to whether the Arrest Clause would prohibit arrest of Members of Congress for minor traffic violations for which no penalty other than a fine is authorized, even there the applicability of the Clause would appear dubious.  HOWARD v. WEBB, 570 P2d 42 (Ok 1977)  The offense of disorderly conduct, in any event, is a crime punishable by up to a year in prison under Minnesota law, 609.72, Minnesota Statutes 2006, and clearly falls within the category of criminal offenses as to which the privilege against arrest is inapplicable under Williamson. 

            Indeed, even if the term “breach of the peace” were used in its narrower sense of an offense involving violence or public disturbance (as was argued in Williamson) or an offense “entailing at least a threat of violence” (as the Supreme Court described it in Atwater v. City of Lago Vista, 532 US 318, n.2 (2001)), one may question whether Senator Craig would have much of an argument.  The offense of disorderly conduct as defined in the Minnesota law is aimed specifically at conduct which will tend to “alarm, anger or disturb others or provoke an assault or breach of the peace.”  Certainly it would be reasonable to conclude that Senator Craig’s alleged conduct, soliciting sex in a public restroom, is the type of behavior likely to create public disturbance and provoke violence.