by MARGOT CLEVELAND at thefederalist.com
Texas Attorney General Ken Paxton asked a federal court on Tuesday to bar the Biden administration from enforcing the Consolidated Appropriations Act of 2023, claiming Congress failed to constitutionally pass the massive spending bill. While the court is unlikely to freeze the entire $1.7 trillion appropriation, Texas presents a strong case for halting two aspects of the bill.
In February, the Texas attorney general sued the Biden administration, arguing the House of Representatives lacked the constitutionally mandated quorum to pass the Consolidated Appropriations Act of 2023. Paxton is now seeking a preliminary injunction to bar the federal government from enforcing the law.
As Paxton details in his brief supporting Texas’ motion, when the House purported to pass the $1.7 trillion spending bill on Dec. 23, 2022, it lacked a quorum because only 201 representatives were present. Yet the House proceeded with the vote, counting votes of both the 201 present lawmakers and adding to the tally an extra 226 votes those lawmakers cast on behalf of absent members who had appointed them as “proxies.”
The House clerk recorded the bill passed — with 225 yea votes, 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 their votes if “a public health emergency due to a novel coronavirus is in effect[.]” Biden later signed the Consolidated Appropriations Act on Dec. 29, 2022, purporting to make it law and providing appropriations for the fiscal year ending Sept. 30, 2023.
But the House Proxy Rule violates the quorum clause of the Constitution, Paxton argues in his lawsuit against the Biden administration, and thus the Consolidated Appropriations Act never became law.
As I previously explained, from a constitutional perspective, Paxton’s quorum clause argument is a winner. The quorum clause of the Constitution expressly requires a “majority” of members to constitute a “quorum” to do business. As the Texas complaint details, “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.”