Texas Attorney General Ken Paxton scored a victory against the Biden administration as a federal judge found the $1.7 trillion spending bill passed by Democrats at the end of 2022 to be unconstitutional.
This ruling, issued Tuesday by Judge Wesley Hendrix of the Lubbock Division of the Northern District of Texas, opens the possibility of blocking Biden’s allocation of billions in taxpayer funds through subsequent litigation.
The omnibus bill, signed by Joe Biden in 2022 during a family vacation on St. Croix and flown in to meet the Dec. 30 deadline, earmarked $45 billion for Ukraine among other controversial appropriations.
These included passage of the Electoral Count Act, $2.6 billion for the January 6 investigation, nearly $600 million for the Environmental Protection Agency, and $11 million against gun owners. Notably, the bill lacked funding for border security, a critical point of contention for many Americans and Republicans.
AG Paxton filed a lawsuit in early 2023 challenging the implementation of the Consolidated Appropriations Act of 2023, questioning the constitutionality of the House quorum during its passage. The bill was passed with less than half of the US Congress physically present.
“Texas filed this case in mid-February 2023 challenging portions of the Consolidated Appropriations Act of 2023, a $1.7 trillion appropriations bill passed by Congress and signed into law by President Biden in December 2022. Texas claims to be harmed by two unrelated provisions of the law: (1) a $20 million appropriation for DHS’s “Alternatives to Detention” case management pilot program, which uses less expensive and more humane tools such as GPS to monitor non-citizens who would otherwise be detained needlessly; and (2) the Pregnant Workers Fairness Act, which recently requires covered employers – defined to include states as employers – to provide certain accommodations for pregnant workers. Although Texas only seeks to block these two provisions, its legal argument is that the law is invalid because the House of Representatives allegedly did not have a quorum when it passed the law (some members voted by proxy, which Texas claims was not valid)”. He wrote Litigation Tracker.
The lawsuit highlighted that the House allowed proxy voting, a move that Paxton argued contradicts more than two centuries of legislative practice under the Constitution’s quorum clause.
According to the press release at the time:
Attorney General Paxton is suing President Biden and members of his administration for illegally signing and implementing the Consolidated Appropriations Act of 2023, which was the last omnibus spending bill.
The United States Constitution requires that a quorum of members of the House of Representatives be present for the lower house of Congress to conduct business. When the House passed the Consolidated Appropriations Act of 2023 in December 2022, fewer than half of its members were present and more than half voted by proxy.
The United States Constitution authorizes a House without a quorum only to “adjourn from day to day” or “compel the presence of absent members.” Since “presence” means physical presence, the United States Constitution does not permit proxy voting to constitute a quorum. And because the omnibus spending bill was not passed when a quorum of the House was present, it was never legally enacted, it is unconstitutional, and the federal government should be barred from implementing it.
Judge Hendrix’s 120-page opinion meticulously dismantled the Justice Department’s defense of the spending bill, addressing the arguments one by one. Specifically, he rejected the idea that federal courts lack jurisdiction to control the legislative process, citing Supreme Court precedent that requires resolving any challenges to the quorum rule before applying the write-bill doctrine.
Hendrix wrote in his ruling:
“For more than 235 years, Congress has intended the quorum clause of the Constitution to require that a majority of the members of the House or Senate be physically present to constitute a quorum necessary to pass legislation. This rule prevents a minority of members from passing legislation that affects the entire nation. But despite the text of the Constitution and centuries of consistent practice, the House in 2020 created a rule that allowed members not present to be included in the quorum count and vote by proxy. Under this new rule, the House passed a new law included in the Consolidated Appropriations Act of 2023, and that particular provision affects Texas. Like many constitutional challenges, Texas claims this provision is unenforceable against it because Congress violated the Constitution by passing the law.
[…]
And because the House only had a quorum because of this unconstitutional provision of its proxy rule, the House violated the quorum clause when it passed the Consolidated Appropriations Act of 2023. Ultimately, the Court finds that Texas bore the burden of burden of proving one’s right to a permanent Pregnant Workers Fairness Act injunction. In light of these findings, the Court directs defendants to enforce the Pregnant Workers Fairness Act against the State of Texas.”
You can read the full ruling here.
“Congress performed admirably in passing the largest spending bill in the history of the United States with less than half the members of the House bothering to do their jobs, show up and vote in person,” the attorney general said Paxton.
“Former Speaker Nancy Pelosi abused proxy voting under the guise of Covid-19 to pass this law, then Biden signed it, knowing they violated the Constitution. This was an astonishing violation of the rule of law. I am relieved that the Court upheld the Constitution.”
The Texas Public Policy Foundation served as co-advisor. “This meticulous 120-page opinion was written after a thorough trial on the merits,” said Matt Miller, senior attorney for the TPPF. “The Court correctly concluded that the Consolidated Appropriations Act of 2023 violated the quorum clause of the United States Constitution because a majority of the members of the House were not physically present when the $1.7 trillion spending bill was passed. Proxy voting is unconstitutional.”
Rep. Chip Roy (TX-21) released the following statement in response to Judge James Hendrix’s ruling:
Article I of the Constitution has always made clear that members of the House and Senate must be physically present when conducting certain legislative business. For our constitutional system to work, it must be followed.
During the passage of Pelosi’s $1.7 trillion fiscal year 2023 omnibus plan in December 2022, I noticed there was no physical quorum present. In fact, the majority of deputies – 226 – elected to vote by proxy on the final passage of the bill.
While the impact of this ruling will not be immediate, it is a critically important first step in establishing judicial precedent against unconstitutional proxy voting. Thank you to Texas Attorney General Ken Paxton and the Texas Public Policy Foundation for leading this effort in court. And thank you to the Mountain States Legal Foundation for their work on the amicus brief we conducted in the case. I also want to thank former President Kevin McCarthy for working with me to challenge the constitutionality of proxy voting, which the Supreme Court did not uphold, but was the right legal and philosophical position – a position highlighted by yesterday’s ruling.