Texas filed a federal lawsuit that seeks to wipe out the $1.7 trillion fiscal 2023 spending package, relying on an argument that courts previously have rejected about pandemic-era House rules for proxy voting.
Texas Attorney General Ken Paxton argued in the lawsuit filed Wednesday in Texas that the federal government should not be able to implement the measure because fewer than half of House members were present in the chamber to vote on it.
That vote was the day before Christmas Eve as a massive winter storm bore down on much of the country, and most of the then-431 members cast votes via the proxy voting policy that Republicans ended when they took control of the chamber in January.
“The members have planes to catch, gifts to wrap, toys to assemble, carols to sing, religious services to attend to,” then-Speaker Nancy Pelosi, D-Calif., said during a floor speech.
Paxton points to a clause in the Constitution that requires a majority of the House, or quorum, be present for the chamber to do business. Because only 201 House members voted in person, that did not constitute a quorum, Paxton argued.
“The Quorum Clause’s text, the structure of the Constitution, and the longstanding — and until three years ago, unbroken — practice of Congress to conduct its business in-person collectively reinforce that the Constitution forbids proxy voting,” the complaint said.
Texas Republican Rep. Chip Roy raised an objection on that issue on the House floor at the time the bill passed on a 225-201 vote. Roy said that by his count there were 226 votes by proxy, and he asked if there was a “physical quorum present as required under the Constitution.”
Now-retired North Carolina Democratic Rep. G.K. Butterfield, who was in the presiding officer’s chair that day, said rules adopted for the Congress say that members “recording their presence by proxy are counted for the purpose of establishing a quorum.”
Federal courts in Washington have already sided with the Democrats on that issue, when they rejected a constitutional challenge to proxy voting during the coronavirus pandemic in May 2020 from House Republicans, led by now-Speaker Kevin McCarthy.
The then-Minority Leader McCarthy made almost identical arguments about actual presence on the floor as the Texas lawsuit.
The McCarthy lawsuit said that “the Constitution clearly requires Members of Congress to be actually present in the House or Senate chamber to be counted as part of the quorum necessary for either House to do business and to cast their votes from the floor.”
A federal district court judge never got to that question. He ruled that Pelosi and other defendants were immune from suit under the Speech or Debate Clause of the Constitution, since proxy voting fell under the House’s constitutional power to determine its own rules and could not be examined by the courts.
“The Court can conceive of few other actions, besides actually debating, speaking, or voting, that could more accurately be described as ‘legislative’ than the regulation of how votes may be cast,” Judge Rudolph Contreras wrote.
A three-judge panel of U.S. Court of Appeals for the District of Columbia Circuit agreed unanimously.
“Indeed, we are hard-pressed to conceive of matters more integrally part of the legislative process than the rules governing how Members can cast their votes on legislation and mark their presence for purposes of establishing a legislative quorum,” the D.C. Circuit decision states.
The Supreme Court let those decisions stand when it declined to hear McCarthy’s case in January 2022.
The Texas lawsuit makes broad claims about the history of in-chamber attendance in the House but does not mention the previous case brought by McCarthy. The state argues that the House can make its own rules, but it can’t make a rule for determining a quorum that “invents such a fact.”
The Texas lawsuit differs from the McCarthy effort because it was brought in Texas and names President Joe Biden and members of the Biden administration as defendants rather than members of Congress. A representative for the Justice Department could not be immediately reached for comment Thursday.
The Texas lawsuit specifically targets two changes to the law created by the legislation for imposing additional costs on Texas.
One changes Title VII of the Civil Rights Act to require states to provide protections for pregnant workers. Paxton argued the change overstepped the federal government’s ability to potentially subject a state to lawsuits, which it can only do in certain circumstances.
“A lack of workplace accommodations for pregnant employees is not among them,” the lawsuit states.
The other provision is a $20 million case management pilot program within the Department of Homeland Security. The program allows some migrants to be released pending further immigration court proceedings.
The Texas lawsuit argued the change would require Texas to spend millions of additional dollars to fund education and other resources immigrants used while waiting for their court dates.
“The pilot program causes Texas and its local governments to spend additional monies on services to illegal aliens they would not otherwise spend,” the complaint said.
Justin Papp contributed to this report.