In an April 11 amicus brief obtained by The Epoch Times, the lawmakers supported Texas Attorney General Ken Paxton’s motion for a preliminary injunction to prevent the application of the Consolidated Appropriations Act of 2023, which passed the House on Dec. 23 largely due to proxy voting, as a majority of the chamber was absent.
Republicans who signed on to the brief included Reps. Chip Roy of Texas, Morgan Griffith of Virginia, Andy Ogles of Tennessee, Harriet Hageman of Wyoming, Andy Biggs of Arizona, Clay Higgins of Louisiana, Warren Davidson of Ohio, Gary Palmer of Alabama, Matt Rosendale of Montana, and John Rose of Tennessee.
“The House of Representatives’ adoption of proxy voting rules was unconstitutional on the day that it was announced; this Court therefore has the power—indeed the duty—to review and adjudicate the constitutionality of legislation enacted due only to proxy voting,” the legislators contended. “In doing so, it should hold that the Plaintiff is likely to succeed on the merits, because the Consolidated Appropriations Act of 2023 cannot be sustained as a proper exercise of Congress’s power to enact legislation.”
The House instituted proxy voting rules in May 2020 under the leadership of former Speaker Nancy Pelosi (D-Calif.) in response to the COVID-19 pandemic. The new rules allowed members of Congress under quarantine or otherwise unable to vote in person due to the pandemic to designate colleagues to vote in their stead.
Complaint
Paxton’s lawsuit (pdf), filed in February, argues that the Quorum Clause of the Constitution requires members of Congress to be physically present to vote on legislation.“Only with a quorum may either House ‘do business,’” the complaint notes. “In context, that necessitates physically present members. The power to ‘compel the attendance of absent members,’ would make little sense if the Constitution did not require physical attendance.
“Supreme Court precedent supports this construction of the Quorum Clause,” the filing adds. “The Court has held that to constitute a ‘quorum’ necessary to ‘do business,” the Constitution requires ‘the presence of a majority, and when that majority are present the power of the house arises.’”
Bipartisan Practice
McCarthy, who has never voted by proxy, has criticized Democrats for their frequent use of the practice.Yet despite Republicans’ protestations, members of both parties took advantage of the opportunity while they could, and not always because of the pandemic.
For instance, in March 2021, some Republicans received backlash from other members of their own party when they voted by proxy while attending the Conservative Political Action Conference (CPAC) in Orlando, Florida.
Legal Proceedings
The judge assigned to Paxton’s case is U.S. District Judge James Wesley Hendrix, a Trump appointee.However, the Department of Justice has requested a transfer of venue to either the U.S. District Court for the District of Columbia or the Austin Division of the Western District of Texas, holding that those would be a more suitable fit.
In recent weeks, similar change of venue requests have been rejected in other federal lawsuits filed in Texas.
Paxton, meanwhile, has requested a preliminary injunction, holding that the state of Texas will be harmed if the Consolidated Appropriations Act is enforced.