Fifth Circuit grills DOJ on legality of House’s proxy voting policy
A full bench of the U.S. Court of Appeals for the 5th Circuit examined a Texas lawsuit challenging Congress’s pandemic-era proxy voting policy-where many House votes were cast remotely-used when the Pregnant Workers Fairness Act was passed in 2022. The judges questioned DOJ attorney Sean Janda on whether the proxy rule complied with the constitution’s quorum clause, which requires a majority to be present to conduct votes.
Janda argued that proxy voting could still satisfy quorum rules defined by the House and warned that a ruling for Texas could hinder Congress during future emergencies by undermining how Congress validates business without physical attendance. Judges pressed back by asking what counts as a quorum if one chamber allows proxy voting, and they questioned Janda’s reliance on the lack of ancient support for proxy voting as a substitute for physical presence.
Although the House later eliminated the COVID-era proxy voting rules after Republicans took control of the chamber in 2023, the practice remains controversial; the article also notes ongoing disputes and alleged misuse of proxy-like voting.Separate questioning of Texas Solicitor General William Peterson focused on whether physical presence is truly required for quorum. The panel did not say when it will rule, but if Texas loses, the case could move to the Supreme Court-especially since a district court previously sided with Texas while an earlier 5th Circuit panel sided with the federal government.
A federal appeals court grilled Justice Department lawyers on Tuesday over Congress’s pandemic-era policy of proxy voting for legislation, after Texas filed a lawsuit arguing that a law passed by a majority of congressmen who voted by proxy was passed unconstitutionally.
The full bench of the U.S. Court of Appeals for the 5th Circuit heard arguments in a lawsuit challenging the enactment of the Pregnant Workers Fairness Act, a $1.7 trillion federal omnibus bill passed in 2022, after more than half of the votes in the House were cast remotely using the pandemic-era proxy voting policy under then-House Speaker Nancy Pelosi (D-CA). The judges on the appeals court grilled DOJ lawyer Sean Janda over his defense of the House’s now-defunct proxy voting rule, as he argued it is in compliance with the quorum clause of the Constitution, which finds a majority of the chamber must be present to conduct votes.
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Janda argued both that the proxy voting rule is constitutional and that siding with Texas against proxy voting methods could hobble Congress during future emergencies.
“Their view may disable Congress from acting at all in a future emergency, if the majority of members are not able to physically gather in a single location, and if the quorum clause truly required the physical presence of a majority of each house in the same location, the House and Senate could not validly conduct business by unanimous consent or voice vote without majority of members physically present,” Janda said.
“Any such holding would immediately call into question the many statutes they’ve been enacted under those circumstances, and the validity of the countless executive and judicial nominees confirmed under those circumstances,” he said. “The constitution does not require those extreme and destabilizing results.”
The judges pressed Janda on claims that members of Congress do not need to be physically present to fulfill the quorum requirement if one of the chambers opens the door to proxy voting. When asked directly what constitutes a quorum for the House of Representatives, Janda said it would be whatever the House defines in its rules.
“They certainly get to define presence to the extent that that’s necessary for a quorum,” Janda said.
One of the judges also pressed Janda on a past example of the House using proxy voting, such as the proxy voting implemented during the COVID-19 pandemic from 2020 to 2023.
“There’s nothing to support your theory with an actual living, breathing instance of this being done from about 1789 till 2023, there’s no historical example of a proxy being sent in for presence,” one of the judges said, questioning Janda’s assertion that the proxy scheme was a lawful way to reach a quorum.
The House of Representatives eliminated the pandemic-era proxy voting rules, implemented under Pelosi at the onset of the coronavirus pandemic, when the GOP gained control of the lower chamber of Congress in January 2023. Republicans decried the proxy-voting rule as unconstitutional and made it one of the first things axed upon taking control of the chamber. But despite the end of the practice, it has remained a hotly contested topic years later.
Although proxy voting is barred, some members of the House have been accused of still casting votes on behalf of other members in some instances. Rep. Byron Donalds (R-FL) faced heat in February 2025 for allegedly allowing a colleague to vote on his behalf for multiple bills while he was simultaneously taping an episode of Real Time with Bill Maher in California. Later in 2025, a bipartisan coalition attempted to force a vote on a bill that would have allowed new parents to vote remotely, but House GOP leadership worked out a deal to allow for “vote-pairing” instead of the proxy voting bill, which House Speaker Mike Johnson (R-LA) argued would be unconstitutional.
The judges also questioned Texas Solicitor General William Peterson over his arguments that the House is prevented from using proxy voting under the quorum clause, questioning if physical presence is needed to satisfy that requirement.
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The panel did not indicate when it would issue a ruling, but regardless of where the judges land, the losing side would have to appeal to the Supreme Court if it seeks a reversal of the forthcoming ruling.
A federal district court sided with Texas, while a three-judge panel on the 5th Circuit sided with the federal government. During arguments, one of the judges predicted that if they side with Texas, the Supreme Court will likely have to take up the case.
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