WASHINGTON (CN) — In a sign of the times, a federal judge heard remote arguments Friday on a lawsuit filed by Republicans to block remote proxy voting in the House, a historically unprecedented procedure initiated by Democrats to limit the spread of Covid-19.
Democrats cleared the way for the congressional body to legislate remotely — for the first time in its more than 200-year history — with the passage of H.R. 965 in May. The resolution allows for remote proxy voting as well as committee hearings held by videoconference.
Republicans filed suit within two weeks, claiming the majority had “flinched from its constitutional duty to assemble at the nation’s capital.”
But House General Counsel Douglas Letter said the new rules allow democracy to function despite the grave threat posed by the novel coronavirus outbreak. The Covid-19 death toll in the United States topped 145,000 as Friday’s hearing was ongoing.
“Technology here has enabled our democracy to work better even when it is threatened by a global pandemic,” Letter said.
But GOP attorney Charles Cooper argued members of Congress must be physically present on the House floor to constitute the quorum required for a vote.
“Our plaintiffs’ vote has been denied its full validity by the dilution created by proxy votes that are null and void,” Cooper said.
Pointing to Representative Jamie Raskin, D-Md., recently casting his own vote and seven votes for absent members, the Republicans’ attorney argued the court must consider the proxy-cast votes invalid.
The Constitution is riddled with language that supports the claim brought by 160 of the 198 House Republicans, Cooper argued, citing examples like “when sitting for that purpose” and “the Congress shall assemble.”
U.S. District Judge Rudolph Contreras opened the remote proceedings affirming for the parties that he had not made a decision on the motion for preliminary injunction based on the briefs.
“Give me your best pitch,” the Obama appointee said at the outset of the nearly three-hour videoconference hearing.
Letter struck the strongest blow to the GOP’s case when he noted that Republicans failed to address the fact that the Supreme Court has made clear it will not interfere in the power of both the House and the Senate to set their own rules.
“The rules clause is absolutely essential here and Mr. Cooper has to address it; he has to face it,” the Democrats’ attorney said.
Cooper instead took the judge through historical examples of national crises that did not deter Congress from legislating in person — among them the War of 1812, the Civil War, the 1918 influenza pandemic and the 9/11 terror attacks.
He also focused closely on the 1793 Yellow Fever epidemic in Philadelphia, Pennsylvania, then the seat of the newly born government.
The GOP attorney outlined how Alexander Hamilton, Thomas Jefferson and James Madison all advised President George Washington that the Constitution did not permit him to mandate Congress convene outside the disease-plagued city.
“It was a given, your honor, to all four of these founders, that the members of Congress would have no choice but to convene in person, in their respective houses, in the seat of government despite the contagion that awaited them,” Cooper said.
But Letter pushed back on the historical example and told the judge that the founders were at the time addressing the power of the president, and furthermore did not pass an amendment requiring physical presence in the chamber to vote.
The House is also currently convened in Washington, the attorney added, having affirmed in response to a question from the judge that the members of the body have constituted a quorum since the disputed rules passed.
“Nothing in the Constitution talks about physical presence of the members…under the Capitol dome,” Letter said.
Democrats also argued the Supreme Court in Raines v. Byrd overruled the 1994 appeals court decision that their GOP counterparts are heavily relying on. The case before the high court in 1997 involved several members of Congress challenging the constitutionality of the Line Item Veto Act.
However, Cooper proffered on Friday that if Raines inhibits challenges to the resolution allowing remote proxy voting, it could likewise shut down concerns raised over hypothetical rules forbidding congresswomen from voting, or reducing the power of their vote by half.
Urging the judge to rely on his ability to interpret the text, Cooper stressed repeatedly that the absence of the word “physical” in the Constitution does not mean the intent of the founders is up for debate.
“He is asking you to ignore the plain and clear meaning of these passages,” the GOP attorney said.
During the lengthy hearing, Contreras asked few questions that indicated how he intends to rule on the matter.
Recognizing the complex dispute is likely bound for the Supreme Court, the judge said he planned to issue a quick decision in order to “send everyone on their way.”