Ten House Republicans on Tuesday backed a lawsuit that seeks to overturn the latest omnibus spending bill by challenging the lower chamber’s use of proxy voting as unconstitutional.
In an amicus brief, the lawmakers wrote in support of Texas Attorney General Ken Paxton’s (R) effort in court to block implementation of the mammoth $1.7 trillion spending package that was passed in December.
“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 lawmakers wrote.
“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 brief continued.
The signatories are: Republican Reps. Chip Roy (Texas), Morgan Griffith (Va.), Andy Ogles (Tenn.), Harriet Hageman (Wyo.), Andy Biggs (Ariz.), Clay Higgins (La.), Warren Davidson (Ohio), Gary Palmer (Ala.), Matt Rosendale (Mont.) and John Rose (Tenn).
Paxton’s lawsuit, which was filed in February, argues that because it used proxy voting, the House did not have a quorum when it voted on Dec. 23, 2022, to approve the omnibus, capping off weeks of drama to secure government funding for the next fiscal year.
House rules for the previous Congress allowed proxy votes to count toward a quorum, but Freedom Caucus members — who comprise the bulk of the signatories — have eyed a constitutional challenge based on physical presence for months.
“Proxy voting is unconstitutional,” the lawmakers wrote in the brief, which the Mountain States Legal Foundation filed on their behalf.
“For 231 years, Congress has met in person,” the Republicans continued. “The Constitution’s requirements survived wars, pandemics, natural disasters, terrorist attacks, and numerous other crises through history, and Congress had never voted by proxy to enact bills before 2020. This is undoubtedly due to the Constitution’s language that establishes physical presence is necessary in the People’s House.”
Republicans long criticized proxy voting, which the House began using at the onset of the coronavirus pandemic, and eliminated it upon taking back the majority in this Congress.
The Supreme Court declined to take up a lawsuit led by then-House Minority Leader Kevin McCarthy (R) over the rule last year after the D.C. Circuit Court of Appeals found that federal courts did not have jurisdiction to hear such disputes between lawmakers over legislative procedure.
Meanwhile, the Justice Department (DOJ) has contended Paxton improperly filed the lawsuit in in the Northern District of Texas so it would be heard by a friendly judge.
James Wesley Hendrix, a Trump appointee, is assigned to the case, but the DOJ has asked Henrix to move the case to a more suitable area. Similar transfer attempts have failed in recent weeks in two other federal cases in Texas.
