WASHINGTON (CN) — The Founding Fathers did not have Zoom, a federal judge on the D.C. Circuit pointed out Monday, hearing a challenge by House Republicans to their Democratic counterparts allowing remote legislating during the coronavirus pandemic.
The GOP lawsuit faces an uphill battle after a district judge opted to exhibit restraint and not interfere in the Democrat-controlled House’s new rule permitting members to designate colleagues as proxies during floor votes and to conduct remote hearings and markups of legislation.
Whether the Constitution's decree that “for any Speech or Debate in either House, they [members of Congress] shall not be questioned in any other Place” forecloses Washington’s judiciary from ruling is at the heart of the partisan legal battle
House general counsel Douglas Letter argued it does indeed. The courts cannot interfere in the legislative process, he said, telling the three-judge panel there’s nothing more integral to the legislative process than the act of voting.
Chief U.S. Circuit Judge Sri Srinivasan, an Obama appointee, agreed that the issues before the court seemed “imminently bound up” in the legislative process.
But Charles Cooper, arguing for 20 House Republicans, among them House Minority Leader Kevin McCarthy, called the proxy voting rule passed in May unprecedented.
It marks a departure from the chamber’s 231-year history of voting in person and swings far from the text of the Constitution which makes “persuasively clear that actual presence” is required to cast a vote, Cooper argued.
“We’ve had members — even essentially on their deathbed — rolled into the chamber to cast their vote,” the GOP attorney said.
He argued that while voting as a general matter is integral to the legislative process, proxy voting is a different matter.
“That can’t be considered as integral to the legislative process, your honor, because it’s never happened before,” Cooper said.
Relying in part on an example that failed to convince the district court, the GOP attorney told of the Yellow Fever epidemic of 1793.
At the time, Alexander Hamilton, Thomas Jefferson and James Madison advised President George Washington that the Constitution mandated Congress meet in person — even if that meant gathering in a field outside of Philadelphia, then the seat of government.
But U.S. Circuit Judge Judith Rogers responded that their conclusion must be taken in context.
Eighteenth century lawmakers used pens and quills, the Clinton appointee noted, and did not have technology like the videoconference software platform Zoom that allowed them to meet virtually.
“Boots on the ground is what you’re saying the Founders required,” Rogers said.
U.S. Circuit Judge Justin Walker picked up the line of questioning, asking in a hearing held by videoconference per the court’s Covid-19 protocol: “Do you think that I’m present for this oral argument?”
Cooper conceded that Walker was “present,” but added that if his clerk over videoconference asked questions on behalf of the judge, or by proxy, that would not be the case.
The panel also prodded at the House’s claim that Republican members had no standing to challenge the historic change to congressional work.
Letter relied heavily on the Supreme Court’s 1997 decision in Raines v. Byrd, which dictates in large part the ability of individual members of Congress to bring a suit.
Asked by Walker whether a member of Congress could sue if a House rule discriminated against them personally, Letter noted that would pose a very different case.
Here, the ability to proxy vote is available to both Democrats and Republicans, he said.
Letter asserted Republicans seek to force House members to vote in person “even if that makes them vulnerable to death from a raging pandemic.”
Without touching on the risks of the outbreak, Walker, a Trump appointee, struck at a more fundamental issue on the minds of his fellow judges.
He said no court is meant to be an instrument of partisan warfare, ostensibly alluding to the host of politically charged cases in the D.C. federal courts between the Democrat-controlled House and President Donald Trump’s GOP.
“It seems to me,” Walker said, “that this is yet another case where one group of politicians are sparring with another group of politicians and they want a federal court to pick a side.”
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