Joe Biden’s Dec. 29 signing of the Consolidated Appropriations Act of 2023 was invalid because the House never actually passed the omnibus spending bill the president purportedly signed into law. At least, that’s what Texas Attorney General Ken Paxton claims in a little-noticed lawsuit he filed last week against the Biden administration. If a court agrees, the taxpayer-funded $1.7 trillion federal spending spree — and every other aspect of that bill — could be rendered void.
While the “if” in that sentence does some heavy lifting, it is not because Paxton’s lawsuit is weak on either the facts or the law. On the contrary, his complaint in Paxton v. Department of Justice makes a seemingly unassailable case that the House of Representatives lacked the constitutionally mandated quorum to pass the appropriations act. Nonetheless, the enormity of a court striking an omnibus spending bill may leave the judicial branch shrinking from its constitutional duty.
As Paxton’s lawsuit explains, the appropriations bill began its life as House Resolution 2617, which the lower chamber passed in September of 2021. The Senate passed a different version of the bill in November of 2022, and because the bills were not identical, the differences had to be reconciled and then approved by each body. The Senate approved the House’s amendments to the bill on Dec. 22, 2022, and the next day, members of the House met to consider the Senate’s changes.
Here’s where the constitutional problem arose, says Paxton’s lawsuit. When the House met on Dec. 23, 2022, to vote on the Consolidated Appropriations Act, it lacked a quorum to conduct business. Only 201 of the representatives were present. Nonetheless, the House proceeded with the vote. But it didn’t just count the votes of the present members. It added to the tally an extra 226 votes, cast by present House lawmakers on behalf of absent ones who had appointed them “proxies.”
While the votes of those physically present totaled 88 yeas and 113 nays, the House clerk recorded that the bill passed by a margin of 225 yea, 201 nay, and 1 present, relying on a rule originally adopted in May of 2020 that allowed members to “designate another Member as a proxy” to “cast the vote” of the designating Member if “a public health emergency due to a novel coronavirus is in effect[.]”
Biden would later sign the Consolidated Appropriations Act on Dec. 29, purporting to make it law and providing appropriations for the fiscal year ending at the end of this coming September. However, because the House proxy rule violates the quorum clause of the Constitution, the Consolidated Appropriations Act never became law, according to Paxton’s complaint.
As the Constitution’s Article I quorum clause states:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
“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 Texas attorney general alleges in the complaint. Then, over the course of multiple pages, Paxton provides a detailed analysis that overwhelming supports that conclusion.
It would make little sense for the Constitution to expressly say that if a quorum were lacking, the House was “authorized to compel the Attendance of absent Members,” if proxy voting were allowed, Paxton first notes. Relatedly, the complaint highlights, “delegates at the Constitutional Convention rejected proposals that would have allowed Representatives to ‘vote by proxy’ — but only after James Madison added language giving Congress the power to compel absent Members’ attendance.” The founders had also previously rejected proxy voting during debates over the Articles of Confederation, further illustrating that only those physically present could be counted for purposes of a quorum.
Next, the lawsuit stresses how the Supreme Court has interpreted the quorum clause. It’s held that in order to conduct congressional business, the Constitution requires a majority of members to be “actually and physically present.” This aligns with the meaning of “present” at the founding: “not absent; face to face; being at hand.” Paxton further bolsters his complaint with a rundown of other constitutional provisions, such as record-keeping requirements and impeachment rules in the Senate, indicating the need for physical presence.
Based on centuries of historical precedent, including even during various national emergencies, Paxton says there’s only one conclusion: “The Quorum Clause requires physical presence.”
During the Yellow Fever epidemic, Thomas Jefferson urged President Washington to keep Congress sitting in Philadelphia, then the capital, even if it meant meeting ‘in the open f[ie]lds.’ … [I]n the aftermath of that epidemic, the Third Congress enacted a law — still in force today — stating that ‘[w]henever Congress is about to convene, and from the prevalence of contagious sickness, or the existence of other circumstances, it would, in the opinion of the President, be hazardous to the lives or health of the members to meet at the seat of Government,’ the President could ‘convene Congress at such other place as he may judge proper.’
There would be no reason to meet “in open fields” or to “convene Congress at such other place as he may judge proper” if the House and Senate could instead opt for proxy voting without the attendance of elected officials. As the Texas lawsuit stresses, through the Civil War, the Spanish flu pandemic, the Cold War, and the 9/11 terrorist attacks, Congress met in person while preparing to conduct business in the event of extraordinary circumstances, such as “in a secret congressional bunker hidden in West Virginia” in the case of a nuclear attack on the Capitol.
This long-settled and established practice, Texas maintains, confirms that the Constitution requires the physical presence of the elected lawmakers for a quorum to be achieved. Thus with only 201 members present in the House on Dec. 23, 2022, the legislative body lacked a quorum. Under the Constitution, the House had only two options, Paxton argues: “adjourn from day to day” or “compel the attendance of absent Members” — and “passing” the Consolidated Appropriations Act was not one of those options.
From an originalist perspective, Paxton’s complaint makes an unassailable case. Yet little notice has been paid to the lawsuit, likely because the D.C. Circuit Court had previously rejected then-House Minority Leader Kevin McCarthy’s challenge to the Pelosi proxy-voting rule. The Supreme Court would later refuse to take up McCarthy’s appeal.
While in McCarthy v. Pelosi, the Republican leader had also challenged the proxy-voting rule under the quorum clause, that decision has no bearing on Paxton’s lawsuit because the courts never reached the merits of the constitutional argument. Rather, a federal trial court dismissed McCarthy’s lawsuit after concluding the Constitution’s speech or debate clause gave Pelosi and the other defendants immunity from the suit, and the D.C. Circuit Court affirmed.
The speech or debate clause of the Constitution provides that “Senators and Representatives … for any Speech or Debate in either House … shall not be questioned in any other Place.” The Supreme Court has long held that the clause protects more than mere “speech” and “debate,” extending the protection to all legislative acts. And the D.C. Circuit held that adoption of the proxy rule and voting under that rule constitute “legislative acts” for which House members and their staff are immune from suit.
But Paxton is not suing House leaders. He is suing Biden, the U.S. attorney general, the Department of Justice, and various agencies or bureaucrats responsible for enforcing portions of the Consolidated Appropriations Act of 2023 that harm Texas. For that reason, the D.C. Circuit Court of Appeals’ decision letting the proxy-rule stand has no force of precedent over Paxton’s lawsuit.
Paxton’s complaint also presents a strong case that it has standing, or the right to sue — something the defendants in McCarthy v. Pelosi had argued McCarthy lacked. In Texas’ case, Paxton highlights two specific provisions of the Consolidated Appropriations Act of 2023 he claims injure the state, thereby establishing Texas’ standing.
First, the Consolidated Appropriations Act expanded Title VII’s anti-discrimination provisions to require employers, including Texas, to provide “reasonable accommodations” to “limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless” doing so would “impose an undue hardship on the operation of the business.” While “Texas accommodates the reasonable needs of its pregnant employees as a matter of course,” the attorney general argues that the Pregnant Workers’ Fairness Act shoehorned into the omnibus bill injures the state by subjecting “it to the costs, hassles, and attendant risks of administrative proceedings, investigations, and lawsuits” if anyone considers the state’s demands “unreasonable.”
Second, the appropriations bill allocated $20 million to fund nonprofits and local governments for the purpose of connecting illegal aliens released by Immigration and Customs Enforcement with various social services, including legal services. This program, Texas maintains, “encourages illegal aliens to seek additional spending from States,” and those additional monetary costs injure Texas.
While Paxton’s complaint focuses on only two portions of the Consolidated Appropriations Act, the Lonestar State’s constitutional challenge, if successful, would render the entire law null. With such an enormous consequence resting on the outcome of the case, the courts may be hesitant to intervene.
But the Constitution is the Constitution — whether the questions that arise deal with the free exercise of religion, freedom of speech, the right to keep and bear arms, or more mundane matters such as the quorum clause.
Whether courts will see it that way, however, remains to be seen, with district court Judge James Hendrix — a Trump appointee, who was first nominated by Barack Obama — put to the test first.