Texas asks a Trump judge to declare most of the federal government unconstitutional

Texas Attorney General Ken Paxton greets former President Donald Trump at a 2022 rally in Robstown, Texas. | Brandon Bell/Getty Images

Ordinarily, this lawsuit would be laughed out of court. But you never can tell with Trump’s judges.

Earlier this month, Texas’s Republican Attorney General Ken Paxton filed a lawsuit claiming that the $1.7 trillion spending law that keeps most of the federal government — including the US military — operating through September of 2023 is unconstitutional.

Paxton’s claims in Texas v. Garland, which turn on the fact that many of the lawmakers who voted for the bill voted by proxy, should fail. They are at odds with the Constitution’s explicit text. And a bipartisan panel of a powerful federal appeals court in Washington, DC, already rejected a similar lawsuit in 2021.

Realistically, this lawsuit is unlikely to prevail even in the current, highly conservative Supreme Court. Declaring a law that funds most of the federal government unconstitutional would be an extraordinary act, especially given the very strong legal arguments against Paxton’s position.

But the case is a window into Paxton’s broader litigation strategy, where he frequently raises weak legal arguments undercutting federal policies before right-wing judges that he has personally chosen because of their ideology. And these judges often do sow chaos throughout the government, which can last months or longer, before a higher court steps in.

Texas’s federal courts give plaintiffs an unusual amount of leeway to choose which judge will hear their case, an odd feature of these courts that Paxton often takes advantage of to ensure that his lawsuits will be heard by judges who are likely to toe the Republican line. These decisions, moreover, appeal to the deeply conservative United States Court of Appeals for the Fifth Circuit.

Paxton filed the Garland case in Lubbock, Texas, where 100 percent of all federal lawsuits are heard by a Republican appointee. Two-thirds of such cases are automatically assigned to Judge James Wesley Hendrix, who will hear this suit.

Hendrix, a Trump appointee to a federal court in Texas, is a bit of an unknown quantity. In his brief time on the bench, Hendrix did hand down one poorly reasoned decision undercutting a federal statute that requires most hospitals to perform medically necessary abortions. But Hendrix’s thin record does not tell us enough to know whether he’d actually be so aggressive as to declare most of the United States government unconstitutional.

The Texas federal bench is also riddled with judges — Matthew Kacsmaryk, Drew Tipton, and Reed O’Connor are probably the best known among them — who’ve largely behaved as rubber stamps for any right-leaning litigant who appears before them. It’s notable that Paxton chose to bring this case in Lubbock, where he was likely to draw Hendrix as his judge, rather than bringing this suit before Kacsmaryk or Tipton (Kacsmaryk hears 100 percent of federal cases filed in Amarillo, Texas. Tipton hears all cases filed in Victoria, Texas). But it remains to be seen whether Hendrix will show the same contempt for the rule of law as a Kacsmaryk or a Tipton.

So, while this case probably isn’t an immediate cause for alarm, it is a reminder that no lawsuit filed in Texas’s federal courts can safely be ignored.

Paxton’s lawsuit claims that the law funding the federal government is unconstitutional because it was passed using proxy voting

In 2020, at the height of the Covid-19 pandemic, the US House of Representatives voted to permit its members to cast votes by proxy for as long as the public health emergency arising out of that pandemic was in effect. Under this rule, a member of the House who is present in the Capitol may cast proxy votes on behalf of up to 10 colleagues, provided that those colleagues give the member written authorization to act as their proxy, and provided that those colleagues give the member instructions on how to vote.

At the time it was enacted, the constitutionality of this rules change was uncertain because no court had ever ruled on whether proxy voting is permissible.

Indeed, shortly after the proxy voting rule took effect, 21 House Republicans — most likely emboldened by the fact that the federal judiciary is dominated by Republican appointees — filed a lawsuit claiming that the new House rule was unconstitutional. But that case, known as McCarthy v. Pelosi, was rejected by a bipartisan panel of the US Court of Appeals for the District of Columbia Circuit. The Supreme Court decided not to review that decision in January of 2022.

Armed with this bipartisan ruling that proxy voting is constitutional, the House continued to use it until this year, when the new Republican majority eliminated the rule permitting proxy voting. When Congress met in late December to fund the government for most of 2023, many House members voted by proxy. According to Paxton’s lawsuit, a majority of the House — 226 members — did not physically attend the session when this funding bill received its final vote, voting by proxy instead.

Paxton’s lawsuit rests on a provision of the Constitution which states that “a Majority of each [House of Congress] shall constitute a Quorum to do Business.” He argues that members of the House must actually be physically present in the US Capitol to count toward this quorum.

As the DC Circuit’s decision in McCarthy suggests, there are serious legal problems with this argument.

The most glaring flaw in Paxton’s argument is that, while the Constitution does state that a majority of the House “shall constitute a quorum,” it is silent regarding what process Congress must use to determine if a quorum is present. Nor does it state that members must actually be physically present at a particular location in order to count toward a quorum.

Very much to the contrary, the Constitution provides that “each House may determine the rules of its proceedings.” That indicates that the House of Representatives, and the House of Representatives alone, gets to decide what the rules are governing whether a particular member is able to contribute to a quorum. Can a member contribute to a quorum if they are present only by proxy? The Constitution’s text indicates that the House alone will decide this question.

Paxton relies on two older Supreme Court decisions, United States v. Ballin (1892) and Christoffel v. United States (1949), which he cites for the proposition that members must be “actually and physically present” to contribute to a quorum. But the Ballin and Christoffel decisions, when read in full, actually undermine his arguments.

Ballin asked whether a bill was lawfully enacted if it passed the House while a majority was physically present, but where only a minority of the House’s members actually voted on the bill. Paxton quotes a single line in Ballin, which states that “all that the constitution requires is the presence of a majority, and when that majority are present the power of the house arises,” to support the proposition that a majority of the House must actually be physically present for a quorum to exist.

But the very next line of the opinion undercuts Paxton’s argument. “But how shall the presence of a majority be determined?” Ballin asks, before answering that this question should be answered by the House itself. “The constitution has prescribed no method of making this determination, and it is therefore within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact.”

Paxton’s reading of Christoffel is similarly misguided, as that decision also emphasized “what rules the House has established and whether they have been followed.” So both precedents suggest that the House of Representatives alone gets to decide what its rules are for establishing a quorum — and not the federal judiciary.

Meanwhile, another provision of the Constitution, which says that members of Congress “shall not be questioned in any other place” for “any speech or debate in either House” also cuts against Paxton’s argument in Garland. Indeed, the DC Circuit ruled in McCarthy that this, often called the speech and debate clause, prohibits courts from interfering with how the House conducts votes on legislation.

Although that clause refers explicitly to only speech or debate on the House floor, the Supreme Court has long read it broadly. The Court held in Doe v. McMillan (1973) that this clause “includes within its protections anything ‘generally done in a session of the House by one of its members in relation to the business before it.’” Under Doe, that includes “voting by Members” on legislation.

Similarly, in Gravel v. United States (1972), the Court established that the speech and debate clause protects against lawsuits challenging legislative actions that make up “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation.”

A House rule permitting members who are not physically present in the Capitol to vote by proxy involves the very sort of “House proceedings with respect to the consideration and passage or rejection of proposed legislation” that the Court discussed in Gravel.

Finally, there’s a third reason why Paxton’s suit should fail. The Supreme Court has long recognized that certain disputes involve “political questions” that are beyond the reach of an unelected judiciary, and must be decided by the two elected branches of government. In Baker v. Carr (1962), the Court laid out several categories of cases that involve these sorts of political questions, including a case that involves an “unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

The Court, in other words, recognized that there are some decisions by the political branches of government that, once made, cannot be unmade by the judiciary because doing so would do too much harm or cause too much embarrassment to the nation.

The decision to fund the federal government for nearly an entire year is just such a decision. Republicans had a fair chance to litigate the constitutionality of proxy voting in the McCarthy case. They lost that lawsuit before a bipartisan panel of judges, and a Supreme Court dominated by Republican appointees had an opportunity to consider the McCarthy case and decided not to hear it. Congress then relied on the judiciary’s decision in McCarthy to enact legislation funding most of the federal government’s operations for nearly an entire year.

The funding legislation, moreover, was bipartisan. And it was the product of months of negotiations over the 2023 federal budget. Sixty-eight senators voted for this law, including 18 Republicans. And, if this law were declared unconstitutional, that would mean that the entire 2023 budget for most Cabinet departments is unlawful. It would also mean that every paycheck received by a member of the United States military since the law took effect is unconstitutional.

It’s hard to imagine a case that involves a greater need for “unquestioning adherence to a political decision already made.”

So what is likely to happen in the Garland case?

Given the weight of these legal authorities, it is unlikely that even the current Supreme Court, with its 6-3 Republican supermajority, would order a government shutdown. But even if the Supreme Court eventually reverses a lower court decision striking down the spending law, Hendrix — and the far right Fifth Circuit, which will hear any appeal of Hendrix’s decision — could create a considerable amount of chaos in the interim.

Hendrix, who became a federal judge in 2019, has a fairly thin record. So it is tough to determine whether he is the sort of ideologue who might order a government shutdown from the bench. Again, Hendrix did hand down one anti-abortion decision that is genuinely alarming, in part because it is doubtful that he even had jurisdiction to hear that case in the first place. But he otherwise has not distinguished himself in his brief time on the bench.

This does not necessarily mean that he will do Paxton’s bidding in a lawsuit claiming that most of the federal government is unconstitutional.

But the fact remains that, given the opportunity to effectively choose his own judge in the Garland case, Paxton chose to file his lawsuit in a location where he was likely to draw Judge Hendrix. That suggests Paxton, at least, believes that he has a real chance of obtaining a disruptive decision from Hendrix in Garland.

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