(CN) — The Department of Justice asked a Fifth Circuit Court of Appeals panel on Tuesday to overturn a federal judge’s ruling deeming a $1.7 trillion federal spending law unconstitutional.
Department of Justice attorney Courtney Dixon told a three-judge panel that the judge’s ruling on the Consolidated Appropriations Act of 2023 was “the first time ever” that a court had invalidated a federal law based on the argument that Congress lacked a physical quorum at the time of its passage.
“Nothing in the Constitution’s text imposes a physical presence requirement on members of the House, and the district court’s decision to read such a requirement into the Constitution unduly constrains the House’s constitutionally conferred rulemaking power and calls into doubt centuries of legislative practice,” Dixon said.
The case arose when the state of Texas filed a lawsuit against the federal government in February 2023, challenging the federal Pregnant Workers Fairness Act — a law passed as part of the Appropriations Act that requires employers to provide reasonable accommodations to pregnant workers.
Rather than challenging the constitutionality of the law itself, Texas made the argument that the entire Appropriations Act was not constitutionally passed due to the House’s use of proxy voting.
But U.S. Circuit Judge Stephen Higginson seemed skeptical of this argument.
“The text that we’re looking at is the majority of each house shall constitute a quorum to do business. Doesn’t say in the Capitol or physical, doesn’t even say present. So it could be virtual or physical,” Higginson, a Barack Obama appointee, said.
Texas’s attorney, Jacob Beach, responded that the court needs to look at more than just the text of the Constitution.
“The other three indicia that the Supreme Court has told us to look to, including historical context, historical practice and the tradition, the why and the how, all of those support a physical presence requirement,” Beach said, adding, “This is 235 years of consistent practice, and only in 2020 did they decide that physical presence wasn’t necessary.”
Dixon argued the Constitution merely requires that a majority of legislators participate in the proceedings, which she said the House’s proxy voting rule satisfied.
“There’s no dispute that a majority of members participated in the vote, that every member cast their own vote,” Dixon said. “The legislative record shows that at least three members who participated in the vote on the bill changed their vote in real time.”
In February 2024, U.S. District Judge James Hendrix in the U.S. District Court for the Northern District of Texas ruled that the House of Representatives’ use of proxy voting due to Covid-19 to pass the Appropriations Act violated the Constitution’s quorum clause.
Hendrix, a Donald Trump appointee, found that, based on “the Quorum Clause’s text, original public meaning, and historical practice,” the clause requires that a majority of legislators be physically present in order to constitute a quorum.
Although Hendrix found the entire federal spending law was unconstitutional, he limited his remedy to enjoining the Department of Justice from enforcing the Pregnant Workers Fairness Act against Texas in regard to its state employees.
Higginson questioned Beach about whether the federal court had the authority to issue limited injunctive relief in this way.
“What’s your best authority that when Congress passes an omnibus bill for trillions [of dollars], Texas can say, ‘well, we’ll take all the millions for veterans, but we’re not going to adhere to the piece that relates to pregnant women?'” Higginson asked. “What’s the authority that they can sever out and attack injunctively just the portion Texas doesn’t like, but still keep the rest when the premise of the whole argument is the entire bill was not passed constitutionally?”
Beach replied that it’s a “general principle” that a court can decide the scope of the relief it provides.
U.S. Circuit Judges James Graves, also an Obama appointee, and Cory Wilson, a Trump appointee, joined Higginson on the panel.
The quorum clause of the Constitution states that “a Majority of each [chamber of Congress] shall constitute a Quorum to do Business” and that a minority of legislators “may be authorized to compel the Attendance of absent Members.”
In response to the Covid-19 pandemic, the House of Representatives established a rule in May 2020 allowing members to vote remotely during a public health emergency by designating another member to vote on their behalf as their proxy.
Remote members were required to submit a signed letter to the Clerk of the House specifying how they wanted their proxy to vote on each bill. If there were any changes to a bill or additional unscheduled votes, remote members had to send updated written instructions to their proxies.
In December 2022, the House voted 225-201 to approve the final version of the Appropriations Act, with one member voting present and four not voting. 205 of the legislators cast their votes in person, less than the 218 legislators needed to constitute a majority.