Texas Attorney General Ken Paxton has asked a federal court to stop the Biden administration from enforcing the Consolidated Appropriations Act of 2023, claiming that the Congress did not pass the massive spending bill constitutionally. While it is unlikely that the entire $1.7 trillion appropriation will be frozen, Texas makes a strong case for stopping two aspects of the bill.
In February, the Texas attorney general sued the Biden administration, arguing that the House of Representatives did not have the constitutionally mandated quorum to pass the Consolidated Appropriations Act of 2023. Paxton is now seeking a preliminary injunction against enforcing the law.
Paxton claims that when the House passed the $1.7 trillion spending bill on December 23, 2022, it lacked a quorum because only 201 representatives were present. However, 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, and it was signed into law by the Biden administration just a few days later. Paxton argues that the House Proxy Rule violates the quorum clause of the Constitution and thus the Consolidated Appropriations Act never became law.
Paxton’s quorum clause argument is a winner from a constitutional perspective. The quorum clause of the Constitution expressly requires a “majority” of members to constitute a “quorum” to do business.
The Biden administration’s best option would be to grant Texas’ motion, but enter a preliminary injunction limited to the two specific aspects of the Consolidated Appropriations Act challenged by Texas. Specifically, Texas objects to the DHS’ Alternatives to Detention Program and the Consolidated Appropriations Act of 2023’s purported expansion of the definition of pregnancy discrimination. Freezing those two aspects of the Consolidated Appropriations Act of 2023 while Texas’ lawsuit proceeds will maintain the status quo until the courts resolve the important constitutional questions presented in Paxton v. DOJ.
Courts have relied on the so-called Enrollment Bill Rule to hold that once a bill is “enrolled” in the official journal of the House (or Senate), challenges to the passage of the bill are precluded. According to Paxton, however, the Enrollment Bill Rule only precludes judicial review of “factual” questions, not “legal” questions. Because Texas’ constitutional challenge presents only a legal question for the court, Paxton argues the Enrollment Bill Rule does not apply. Whether the Enrollment Bill Rule prevents judicial review of a quorum clause challenge is an issue of first impression for the court.
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