Congress’ Covid-Era Proxy Voting Draws Fifth Circuit Worries (1)

The full Fifth Circuit had tough questions for lawyers arguing whether a fiscal 2023 spending package was constitutionally passed using proxy voting in the US House of Representatives.

During Tuesday’s en banc argument in New Orleans, conservative members of the appeals court struggled with the Justice Department’s stance that House members’ physical presence wasn’t required under the text of the US Constitution.

Lubbock, Texas-based US District Judge James Wesley Hendrix in 2024 struck down part of a $1.7 trillion spending package enacted during the Covid-19 pandemic, finding the House of Representatives violated the Constitution’s quorum requirements as some members voted by proxy.

Texas had sued over the Pregnant Workers Fairness Act, legislation included in the spending package that requires employers to grant reasonable accommodations for pregnant employees, like those required for disabled employees.

The US Constitution’s quorum clause references the power to “compel the attendance of absent members.” Judge Stuart Kyle Duncan, a Donald Trump appointee, asked what “attendance” means, if it doesn’t mean being physically present in the chamber.

Justice Department lawyer Sean Janda argued nothing in the clause itself requires physical presence.

Judge Cory Wilson, a fellow Trump appointee, said Congress had never authorized proxy voting before the Covid-19 pandemic, despite the flu pandemic in 1918, the Civil War, and the Sept. 11, 2001, terror attacks. Janda said Congress could have enacted proxy voting at any point if it wanted, but didn’t.

Judge James Ho, another Trump appointee, asked lawyers on both sides what authority they should use in interpreting the Constitution, when the text says nothing explicitly on the issue being litigated. He said it was important because if the circuit were to rule for Texas, the case is headed to the Supreme Court.

But some members of the court said Texas can’t pick and choose which parts of the act it likes. Judge Priscilla Richman, a George W. Bush appointee, noted that Texas was benefiting from funds distributed through the spending package.

Will Peterson, Texas’s solicitor general, acknowledged that the court would have to find that the entire act was passed unconstitutionally if it sides with the state. But, he said, the court’s judgment would affect only the provision Texas is challenging. He suggested the case could be sent back to the trial judge and that other plaintiffs could sue over other parts of the law if they wanted.

But the judges seemed skeptical, if they were to find the law was passed unconstitutionally, that it’d be so simple.

“How do we unscramble the egg?” asked Wilson.

Some liberal members of the court, including Judge Irma Ramirez, asked why the court shouldn’t take the constitution saying nothing about proxy voting as a sign that it’s permitted.

Judge James Graves pointed out that the framers knew that proxy voting was an option, “and yet they said nothing about prohibiting proxies.”

A divided Fifth Circuit panel last year reversed the trial court and found Congress acted within its authority in establishing the proxy-voting rules during the pandemic. The full Fifth Circuit in February voted to vacate that ruling and rehear the case.

If the full court were to agree with Hendrix’s finding, it could open the door to other challenges to measures passed under the House’s proxy-voting rules. Hendrix emphasized in his 2024 opinion that his ruling was limited only to the PWFA and not the entire spending package.

House Republicans had gone to court over proxy voting at the time the rules were adopted, but federal judges in Washington found those lawsuits were blocked under the speech or debate clause of the Constitution, which immunizes members of Congress from legal challenges tied to their legislative acts.

The case is State of Texas v. Blanche, 5th Cir. en banc, No. 24-10386, oral argument 5/12/26.