Fifth Circuit wrestles with constitutionality of congressional proxy voting

(CN) — The federal government maintained Tuesday to the full Fifth Circuit that the House of Representatives’ use of proxy voting during the Covid-19 pandemic didn’t violate the Constitution’s quorum clause, as the state of Texas insists.

Texas claims that the proxy voting led to the improper passage of a $1.7 trillion spending law in 2023 — and particularly the Pregnant Workers Fairness Act, a piece of legislation requiring accommodations for pregnant employees approved as part of the spending law.

The U.S. Constitution states that “a majority of each [chamber of Congress] shall constitute a quorum to do business.”

Justice Department attorney Sean Janda told the court the clause “is about ensuring majoritarian participation in legislative business, ensuring that a minority faction in Congress cannot enact legislation against the will of the majority.”

He said the clause doesn’t mandate the physical presence of members.

“That is naturally understood across a variety of contexts,” Janda said. “Nobody thinks the majority of this court must assemble in the same room in order to cast a vote on an opinion. Nor must the Supreme Court, multi-member administrative bodies or even corporate shareholders gather together in person to satisfy the quorum requirements applicable to each.”

The Fifth Circuit dug into how the lack of a physical presence requirement for a quorum would fit with provisions of the Constitution allowing a minority of legislators to compel the attendance of absent congressmembers and giving legislators privilege from arrest while attending and travelling to and from sessions of Congress.

Janda suggested “attendance” means “attendance to the business of the House,” but some of the judges pushed back on that definition.

“It doesn’t mean that members of Congress are going in and out of trances,” U.S. Circuit Judge Cory Wilson, a Donald Trump appointee, said. “I mean, mentally going to and from their attendance at the session. That’s preposterous.”

The judges also discussed the history of congressional practices and how Congress has never used proxy voting in this manner previously, despite prior emergencies like the War of 1812 and the Spanish Flu.

Janda attributed this to technological limitations, but U.S. Circuit Judge Edith Jones, a Ronald Reagan appointee, said that by the time of the Spanish Flu, congressmembers would have been able to use telegraphs and telephones.

Texas Solicitor General William Peterson said this case isn’t about modern technology.

Texas isn’t necessarily arguing Congress can’t use virtual attendance to form a quorum, Peterson said, but it can’t use proxy voting, which he said the founders were aware of because it was used in the British House of Lords.

“Either proxies could be used to satisfy the Constitution’s quorum requirement in 1789 and can still be used today, or proxies were impermissible in 1789 and remain impermissible today. On that, text, history and precedent all support the state’s view that proxies cannot be used to satisfy the Constitution’s quorum requirement,” Peterson said.

Due to the pandemic, the House of Representatives permitted members to vote remotely by designating another member to vote on their behalf as their proxy.

Remote members had to submit a signed letter to the Clerk of the House detailing how they wanted their proxy to vote on each bill. If there were any changes to a bill or additional unscheduled votes, remote members were required to send updated written instructions to their proxies.

In December 2022, the House voted 225-201 to approve the final version of the Consolidated Appropriations Act of 2023. Two hundred and five of the legislators cast their votes in person, less than the 218 needed to constitute a majority.

In February 2024, a federal judge ruled the law was not constitutionally passed and blocked the federal government from enforcing the Pregnant Workers Fairness Act against Texas with regard to its state employees.

A three-judge Fifth Circuit panel overturned the lower court’s ruling on a 2-1 vote, with the majority finding the quorum clause does not prohibit proxy voting.

U.S. Circuit Judge Priscilla Richman asked Peterson whether the limited remedy Texas is seeking is appropriate given that it’s arguing the entire spending law was unconstitutionally passed.

She said Texas is asking the court to “surgically excise” the Pregnant Workers Fairness Act out of a multi-trillion-dollar appropriations act, while at the same time, the state is accepting funds from the spending law.

“It seems to me, in an equitable remedy, they cannot do that,” the George W. Bush appointee said. “They have to reject all or accept all.”

But Jones noted Texas would not have standing to challenge benefits it received from the law.

Janda argued that declaring the appropriations act unconstitutional would have drastic implications, saying he had “no idea” how the government could roll back legislation that massive if the entire law was found unconstitutional.

“We don’t have too big to be unconstitutional,” U.S. Circuit Judge Leslie Southwick, a George W. Bush appointee, responded.