The House is set to vote for the first time by remote proxy Wednesday when it takes up the reauthorization of the Foreign Intelligence Surveillance Act.
WASHINGTON (CN) — House Republicans are suing to block Democrats from relying on remote proxy voting during the Covid-19 pandemic, claiming the historic change is a power play by Speaker Nancy Pelosi.
The newly passed House rules hand the speaker authority to implement remote work procedures in renewable 45-day increments during a public health emergency.
“This is endangering the Constitution to ensure Pelosi has more power,” House Minority Leader Kevin McCarthy, R-Calif., said in a Fox interview Wednesday morning.
As novel coronavirus cases in the United States close in on 100,000 cases, Pelosi responded to the minority’s accusation saying the resolution was vetted by constitutional experts and necessary to ensure Congress can continue working during the pandemic.
“House Republicans’ sad stunt shows that their only focus is to delay and obstruct urgently-needed action to meet the needs of American workers and families during the coronavirus crisis,” the California Democrat said in a statement.
But Republicans argue that Congress has never permitted a member to vote by proxy in its 231-year history, overcoming national crises like the burning of the Capitol during the War of 1812, the Spanish Flu pandemic of 1918 and the 9/11 terrorist attacks.
“The Congress of the United States has never before flinched from its constitutional duty to assemble at the nation’s capital and conduct the people’s business in times of national peril and crisis,” the complaint filed Tuesday evening in D.C. federal court states.
“So it was for more than two centuries,” the House minority argues. “Until now.”
Republicans claim their congressional colleagues defied historic precedent and the Constitution when the House voted 217-189 on May 15 to approve new rules that allow for proxy voting as well as remote committee work during the pandemic.
Limiting the number of people on the House floor during a vote, lawmakers will be allowed to designate colleagues as proxies, with each member serving as a proxy for as many as 10 colleagues. Committees can now also hold hearings and legislation markups remotely.
Darrell West, vice president of governance studies at the Brookings Institute in Washington, said he does not expect the Republicans’ case will hold up in court.
“The courts give Congress a lot of leeway to set its internal rules. This is true both for the House and the Senate,” West said. “It’s one of the key principles of separation of powers that each branch can basically run its internal operations the way it wants. I don’t think this legal challenge will be successful.”
The House is set to vote for the first time by remote proxy Wednesday when it takes up the reauthorization of the Foreign Intelligence Surveillance Act, or FISA.
The Supreme Court ruled over 125 years ago in United States v. Ballin that the House has wide discretion to determine when the quorum requirement is satisfied to hold a vote.
“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,” the 1892 ruling states.
But Republicans are grounding their case in the high court finding in 2012 that lack of historical precedent can be a telling indication of a “severe constitutional problem,” in the case NFIB v. Sebelius.
“This is one of those times. There is good reason that no Congress has ever done what the House has now purported to do in H. Res. 965: it is flatly prohibited by the Constitution,” the complaint states.
The historic procedural changes overlook “repeated and emphatic” requirements in the Constitution that members assemble in chamber to vote, Republicans further argue, citing a long list of Article II clauses that among other imperatives outline that Congress must assemble at least once a year and that the District of Columbia be the seat of government.
West, with the Brookings Institute, said that controversy has always followed Congress relying on new technology, including when it began televising proceedings and allowing members to vote by electronic card.
The move to remote proxy voting is an unusual but temporary measure, he stressed, made necessary but the extraordinary circumstances brought on by the coronavirus outbreak.
“Even the founders were quite familiar with problem of epidemics, you know measles, smallpox and other things were quite common two centuries ago,” West said. “So I don’t even think the founders would be shocked at this.”
The case was randomly assigned Wednesday morning to a Washington federal judge appointed by President Barack Obama in 2012.