No Textualist Could Sign Off on Texas Redistricting Gambit

While the country is focused on the drama of Texas Democrats fleeing—and now returning to—the state to avoid Republican Gov. Greg Abbott’s special session on redistricting, there’s a fundamental question that should have ended this controversy before it began: Did Abbott even have the constitutional authority to call this special session on redistricting in the first place?

The answer, under any honest textualist reading of the Texas Constitution or its history, is clearly “no.” And because Abbott lacked the authority to call this special session, the law would call his act ultra vires—meaning beyond his legal authority—and no Texas legislator would have any legal obligation to attend.

This conclusion appropriately limits the gubernatorial power in accordance with the state constitution and original plan for Texas’s limited government in a manner that the Texas Supreme Court, particularly its conservative members who champion textualism and originalism, should be eager to enforce.

As any child of Texas schools learned in Texas history, the state government was designed to possess limited powers: a lengthy and restrictive constitution; a plural executive branch with a weak governor; a legislature that meets only once every two years for just 140 days to limit the ability to pass legislation that could expand government; local control; and fiscal constraints on budgets and taxes.

The desire for these limitations arose historically from a distrust of centralized authority or strong executives because of Texans’ experiences with the excesses under the Mexican rule and Reconstruction era they sought to prevent.

This historical background must be considered when interpreting the Texas Constitution’s grant of the governor’s authority to call a special session in Article IV, Sec. 8: The restrictive language makes clear the governor can only call a special session in “extraordinary occasions.” For textualists who insist judges interpret constitutional language according to its plain meaning at the time of adoption, “extraordinary” in 1876 meant exactly what it sounds like: outside the ordinary course of events.

The constitutional debates and contemporary understanding make clear this meant emergencies—war, pestilence, natural disasters, or urgent threats to public safety such that either prevented the legislature from meeting at the time and place prescribed by the constitution or involving issues that couldn’t wait for the next regular session.

However existentially dangerous or beneficial politicians view it, congressional redistricting isn’t extraordinary but rather is an ordinary, regular governmental function. It happens every decade following the census; here, there is no new census data creating an emergency requiring it to be done sooner.

It’s the definition of ordinary legislative business, anticipated and planned for in advance.

There is nothing “extraordinary” about redistricting in any meaningful sense of the word. That the session may have been called in response to political pressure from Washington, DC, only underscores its non-emergency nature; a partisan political preference isn’t a constitutionally extraordinary occasion.

The restrictive nature of special sessions is further reflected in Article 3, section 40, which further limits the amount of time of a special session to 30 days. This time restriction again reflects a desire for limited government by keeping legislative sessions short and focused.

Together, these provisions tell any textualist that the governor’s ability to call a special session should be viewed restrictively. Governors can respond to genuine emergencies but can’t weaponize special sessions to circumvent the legislature’s regular calendar or exhaust legislators into compliance with executive preferences.

The constitution envisions a part-time legislature meeting for limited periods, not one held hostage to gubernatorial policy demands through successive special sessions. Any other interpretation would allow the governor to force the legislature to remain in Austin working until they pass what he wants: a result that contradicts both the idea of a weak governor and a legislature of limited legislative time.

The governor may point to other special sessions that have occurred over the last 150 years to claim his actions are historically acceptable. In recent decades, governors have sought to accrue new powers by aggressively calling legislators back for everything from school finance to bathroom bills. This gradual expansion has inexplicably gone unchallenged in courts as legislators have gone along with special sessions, but the lack of challenges doesn’t grant legitimacy.

A true strict constructionist would say historical practice can’t change clear constitutional text. Indeed, Justice Clarence Thomas recently addressed this.

“[T]o the extent later history contradicts what the text says, the text controls,” Thomas wrote in New York State Rifle and Pistol Association v. Bruen. “Thus, ‘postratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.’”

So should the Texas Supreme Court reject reliance on recent governors’ abuse of their special session authority.

The political theater around Texas Democrats obscures what should be a straightforward legal determination. Instead of debating removal procedures and political tactics, we should be asking whether this special session was constitutionally authorized at all.

If the Texas Supreme Court truly believes in constitutional government, textualism, and original intent, there is only one conclusion: Abbott’s special session on redistricting was ultra vires, and Texas Democrats had every right to treat it as the nullity it was. It’s time for the court to say so and restore the constitutional balance and limited government the framers intended.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

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Brent Walker is a Dallas, Texas-based trial attorney with a well-earned reputation for winning the most complex cases with novel legal theories and techniques.

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