WASHINGTON (CN) — U.S. House Republicans argue in the D.C. Circuit that a resolution passed following the January 6 insurrection was unconstitutional.
Massachusetts Democrat Rep. James P. McGovern introduced House Resolution 73 in early February 2021. The resolution authorizes the sergeant-at-arms of the House of Representatives to impose a fine of $5,000 for a first offense and $10,000 for any subsequent violation against a member, delegate, or the resident commissioner for failure to complete security screening for entrance to the House chamber.
The resolution engendered significant controversy within the House, approved by a vote of 216 to 210. The resolution did not follow into 2022, and the security measures have been removed.
Members who refused to complete a security screening had the option to pay the fine out of pocket or have the amount deducted from their paycheck. House Republicans claim that having their pay deducted violates the Twenty-Seventh Amendment of the Constitution.
The amendment states that no law varying the compensation for the services of the senators and representatives shall take effect until an election of representatives shall have intervened.
The plaintiffs consist of current Reps. Andrew Clyde and Lloyd Smucker, along with former Rep. Louie Gohmert. The suit names former Sergeant-at-Arms William J. Walker and current Chief Administrative Officer Catherine Szpindor as the defendants.
The plaintiffs argue in their brief that only Republicans were fined for skipping the security checkpoint.
"On February 4, 2021, then-Speaker Nancy Pelosi, the leader of the House Democratic Party majority, violated the Screening Rule by walking past the magnetometers at two entrances and entering the House Chamber via a door in the Speaker's Lobby without subjecting herself to search via the magnetometers," the brief states. "The security personnel, under the Sergeant-at-Arms' authority, did not force her to be screened or restrain her from entering the Chamber. The Sergeant-at-Arms did not issue her a citation, her violation was not referred to the House Ethics Committee, and she was not fined."
Walker fined Clyde twice over two days for refusing to comply with the security checkpoints bringing his fine to $10,000. Gohmert claims he was fined for skipping the checkpoint after using the bathroom midway through the session. Smucker alleges he was running late and did not want to miss an opportunity to vote on a Food and Drug Administration-related bill leading to him skipping the checkpoint.
The district court dismissed the case finding that the Constitution's speech or debate clause barred the member's claim. The clause, which derives from the English Bill of Rights language and has deep roots in the historical struggles between the king and parliament, bars executive or judicial intrusions into the legislative process.
"Appellants' suit is barred by the Constitution's speech or debate clause, which provides absolute immunity from suit to members, officers and Congressional aides for any legislative acts," the defendants' brief states. "As the district court held, there can be no doubt that the challenged acts, all of which involved enforcement of a Resolution adopted pursuant to the House's constitutional powers to govern its own proceedings and to discipline its own members, are legislative acts absolutely protected by the clause."
The plaintiffs argue that the resolution is not immune as it was an administrative function rather than a legislative act. They claim that the resolution on the face is not unconstitutional, but the implementation is.
"The error in the analysis of the district court was in the speech or debate clause analysis treating the acts in issue as if they couldn't be separated from H.R. 73," Attorney Kenneth Cuccinelli of the Law Office of Kenneth T. Cuccinelli, representing the plaintiffs, told the three-judge panel. "Instead of dealing with it as analyzing the implementation of H.R. 73."
The judges seemed confused as to what precisely the plaintiffs claim is unconstitutional.
"You think the implementation of magnetometers is unconstitutional?" U.S. Circuit Judge Michelle Childs, a Biden appointee, asked the attorney.
Cuccinelli argued that they impeded members' ability to vote.
Attorney Matthew Berry, representing the defendants, spent little time discussing the case's merits and instead relied on the jurisdiction argument.
"Every member of the current House leadership voted against it, believing it to be misguided," Berry said. "But this case is not about the wisdom of House Resolution 73, rather it is primarily about whether the appellants' suit is barred by the speech or debate clause."
U.S. Circuit Judges Neomi Rao, a Trump appointee, and Sri Srinivasan, an Obama appointee, completed the panel. Berry and Cuccinelli did not respond to requests for comment.
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