There have been many important lawsuits in the history of the United States of America. Marbury v. Madison, Dred Scott v. John V.F. Sanford, Brown, et al. v Topeka Board of Education, et al. are probably the most significant cases covering the most significant issues in each’s respective century.
I believe, however, that a lawsuit filed by the Texas Attorney General – State of Texas v. Department of Justice – may just be the most significant lawsuit to be filed in THIS young century.
The importance comes from the issues it raises and the stakes of the dispute. Here are the facts:
- The House of Representatives gathered to vote on a law that was previously passed by the Senate.
- When the House voted on that law, there were 201 members present.
- However, the Constitution requires “a majority” to be present to conduct business.
- Therefore, at minimum, there must be 219 members physically present in the chamber to constitute “a majority,” allowing them to conduct business like passing laws.
- Of the 201 members who were present, 113 voted “nay” and 88 voted “yea.”
- However, the members present also voted “by proxy” for several members who were not present.
- As such, the final tally was 225 votes “yea” and 201 votes “nay” and 1 vote “present” (even though, ironically, that member was absent).
- The bill was deemed “passed,” and it was signed by President Biden.
The lawsuit alleges that this law is a nullity, because the Constitution requires members to be present in order to constitute a “quorum.” Had a majority of the members been present, there wouldn’t be a strong constitutional issue. However, since there wasn’t a majority of members physically present, this becomes an EXTREMELY strong constitutional issue, because the Constitution (not the Rules passed by Congress) control what they can and cannot do.
As such, the questions this lawsuit raises are absolutely fundamental. It addresses what is required to pass a law. The basic questions include:
- What is required to pass a law in Congress?
- Who represents whom when passing a law in Congress?
- Does our system have the strength to address a clear violation of a Constitutional provision?
And while their were no shenanigans on display in this particular vote, if the judicial system upholds this law, it raises other questions that strike at the heart of representative government:
- What if a proxy does not do what the absent member intended?
- What do proxies do on votes that are amended on the floor?
- Can you have a proxy OF a proxy?
- What if the proxy OF a proxy does not do what the original member requested?
- What Court has jurisdiction to hear a “breach of contract” case between two members of Congress on a dispute about proxy votes?
- Can members of leadership require ordinary members to designate the leader as a “proxy” in return for committee assignments and other perks?
While you may think that these hypothetical questions are crazy, I’ll remind you of the substance of that in recent years, the issue of “the rules” has been a big issue in the House of Representative. These “rules” are decided by a majority of the house of representatives, and there are no limits on those rules, except what is explicitly outlined in the Constitution. And in recent years, those rules have developed to an extent that:
- The Speaker of the House ALONE has vested with the power to control what bills come to the floor of Congress.
- The Speaker of the House ALONE has been authorized to determine whether or not amendments to bills will be allowed.
- The Speaker of the House ALONE determines who may and who may not serve on ANY house committee.
- And even though the Speaker of the House is empowered through these rules to strong-arm many votes from reluctant members of Congress, the only thing that the House Speaker cannot control is THE INDIVIDUAL VOTE of an individual representative.
But now, with the concept of voting “by proxy,” even the control of the votes of members of the House of Representatives is up in the air. It now appears that the votes of absent members are added to the mix of things that can be controlled by the Speaker of the House, who is third in line to the presidency.
As such, citizens should be on guard:
This is a lawsuit about WHO REPRESENTS YOU.
It is a question about who is “your representative” in the Congress when your personal Congressmen happens to be absent from the chamber. And we must acknowledge that there are many tertiary issues that politicians hyperbolically claim are about “defending democracy.” However:
This lawsuit is QUITE LITERALLY ABOUT DEFENDING DEMOCRACY.
That is as fundamental an issue in the United States of America as “no taxation without representation.” And with this move, We’ve fought revolutionary and civil wars over smaller issues than this. Texas quite literally fought Mexico (and won) in its revolution in response to a far-more-procedurally-legitimate power-grab by the central government in Mexico in 1835.
But surely this will all be fixed, right? It’s just a minor constitutional question, right? It’s not really a big deal, right?
Wrong. Now we need to talk about the law at issue. The law wasn’t renaming a post office. Instead:
IT WAS A BILL AUTHORIZING CONGRESS TO SPEND $1,700,000,000,000.
That’s right. $1.7 Trillion dollars are at stake. As such, even apart from the down-the-road effects of this law, the stakes of this legislation are huge.
And so you would expect that if Congress is required to be present for a bill that was passed “by proxy,” then they will simply have another vote and sign the bill again, right? Well, wrong.
That’s because the bill was passed on December 23, 2022. That’s the same year that the control of the House of Representatives switched from Democrats to Republicans. That means that when the Congress gathers again, it will not be the same people voting. That means that the bill will not pass again.
Oh yea, and the reason that the State of Texas is challenging this law is based on two issues:
- Because it opens up states like Texas to lawsuits, for which they had never before been subject
- Because it creates a program that permitted the release of illegal immigrants into the interior of the country.
So…. Yeah. It goes to the heart of the relationship of the Federal government to state governments in light of clearly unconstitutionally passed legislation, and it also deals with illegal immigration.
So, it seems we have a perfect storm. There is a Constitutional issue of fundamental importance, which will have long-term effects on the substance of representative government, with $1.7 trillion dollars of money at stake, political control of federal spending in the balance, and a showdown on a controversial issue about who belongs in the United States of America or not.
And as I said before, the United States of America ON TWO SEPARATE OCCASIONS has gone to war over issues smaller than this.
So… …good luck, everybody. Let’s hope the Court does the right thing.
Below is the complaint. I suggest you read it all, as it is quite easy to understand and digest.