Ranking Members Nadler, DeLauro, McGovern, and Morelle File Amicus Brief Urging Fifth Circuit to Reverse Texas v. Garland Ruling that Undermines Congress’ Authority to Set its Own Rules

WASHINGTON — Today, Ranking Members Jerrold Nadler, Rosa DeLauro, Jim McGovern, and Joe Morelle jointly filed an amicus brief with the U.S. Court of Appeals for the Fifth Circuit in Texas v. Garland aiming to reverse a ruling by the Northern District of Texas that would undermine Congress’ authority to set its own rules, a move that could potentially jeopardize national security in an emergency.
 
In the amicus brief, the Ranking Members, who respectively serve as a leader of the House Committees on Judiciary, Appropriations, Rules, and House Administration, explain that the House of Representatives clearly had an established quorum when passing H.R.2617, the Consolidated Appropriations Act of 2023, and the Court must respect the will of the majority in passing this legislation.
 
“It has long been recognized that the Constitution grants Congress broad rulemaking authority to set its own rules of operation, including the authority to determine how and when a ‘Majority’ is present for the purposes of establishing a ‘Quorum to do Business.’ The House of Representatives exercised this constitutionally-afforded authority in passing House Resolution 965 in the 116th Congress,” wrote the Ranking Members.

Congress passed H.Res.965 to authorize remote voting by proxy during the coronavirus pandemic to allow the continuity of government while protecting public health. Under the Congressional Proceedings and the Rulemaking Clause of the Constitution, the House of Representatives is authorized to establish rules by which each will conduct its own business. Additionally, the Constitution’s Quorum Clause does not explicitly mention a physical presence in the Chamber to establish a quorum. 

“If upheld, this case would be a devastating blow to Congress’ ability to set its own rules and could significantly hamper continuity of government in a national emergency,” said Ranking Member Nadler. “I’m proud to join my colleagues in this amicus brief as we fight to uphold the Constitution and uphold over 100 years of legal precedent.”

“As an equal, separate branch of the United States government, Congress has always had the power to set its own rules in order to fulfill its duties to the American people," said Ranking Member DeLauro. “This autonomy is central to maintaining a well-functioning democracy. I was proud to join my colleagues on both sides of the aisle to write and pass this critical legislation in 2022, and I will continue working to protect it from attempts to undermine this bipartisan progress.”

“The Constitution is crystal clear: Congress has the power to determine our own rules about how we operate. It’s patently absurd to tell the House of Representatives that we aren’t the ones to decide whether or not we passed a bill. That’s just not how our system works,” said Ranking Member McGovern. “Some people might want to operate a Congress full of chaos, dysfunction, drama, and incompetence, but we do not—I’m proud to join my colleagues in fighting to defend our democracy and working to ensure Congress governs in a responsible and thoughtful way."

“The Constitution is very clear in prescribing Congress the authority to govern itself, and until now the courts have agreed.  This decision severely undercuts Congress’ constitutional prerogative to set its own rules and would prohibit necessary action during a national emergency,” said Ranking Member Morelle. “The Legislative branch is equal to the other two branches of government – it’s time for the Judicial branch to remember that and start acting like it."

In the Amicus Brief, the Members write:

“It has long been recognized that the Constitution grants Congress broad rulemaking authority to set its own rules of operation, including the authority to determine how and when a “Majority” is present for the purposes of establishing a “Quorum to do Business.”  The House of Representatives (“the House”) exercised this constitutionally-afforded authority in passing House Resolution 965 in the 116th Congress (“H.Res.965” and collectively with other then-applicable rules, the “House Rules”), and in re-adopting it in the 117th Congress.  The exercise of this authority is not subject to judicial review in this case under general principles of separation of powers, including the Enrolled Bill Doctrine and the Political Question Doctrine.  Allowing the court to now second-guess, or after-the-fact void, the House’s exercise of its rulemaking authority threatens to disenfranchise all congressional members, and in turn their constituents, who voted in accordance with then-existing House Rules in voting in favor of the Consolidated Appropriations Act, 2023 (the “Act”).  It would also curtail, if not eliminate entirely, Congress’s ability to set its own adaptive rules in times of national crisis or other emergency situations, which would hamper Congress’s ability to do Business at all. 

The District Court erroneously concluded that, notwithstanding this unquestionable authority of Congress’s to set its own rules of operation, the House’s then-existing rules regarding proxy voting violated the Constitution.  The District Court did so by adding a “physical presence” requirement to the Quorum Clause, which simply does not exist.  The absence of any such requirement is evident through, inter alia, a textual reading of the Quorum Clause, an analysis of its original public meaning, and historical practice.  Moreover, the very purpose underlying the Quorum Clause—i.e., to prevent a minority of congressional members from dictating legislative matters—would be undermined by a ruling that effectively negates a law that was properly passed by a majority of actively participating members."

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