In August of 1793, the first cases of yellow fever began to appear in the nation’s capital of Philadelphia, Pennsylvania. It was a poorly understood disease, and it spread through the city, killing around 5,000 residents. President George Washington faced a question of constitutional leadership. He knew that the 3rd Congress was to convene in early December, but feared that the yellow fever would be too dangerous for the representatives and senators to come to Philadelphia.
He sought the advice of Thomas Jefferson, his secretary of state. His question was if the president had the power to convene Congress in a location different from the one Congress had established for itself. Jefferson (along with the Father of the Constitution, James Madison, who was visiting Jefferson at Monticello) rightly answered that the president did not have such a power. In his letter to Washington, Jefferson wrote something that would strike contemporary Americans as harsh.
“Congress must meet in Philadelphia, even if it be in the open fields, to adjourn themselves to some other place.”
Meeting in person—even in the face of an outbreak—isn’t just something Jefferson thought was necessary according to Congress’ own rules. It is a requirement of the Constitution itself, and one Congress failed to follow, starting in 2020, and culminating in the passage of the Consolidation Appropriations Act in December 2022.
Case Background
Article I, Section 5 of the US Constitution is commonly called the Quorum Clause. It states that “a Majority of each [chamber of Congress] shall constitute a Quorum to do Business.” A quorum is a fancy way of saying the minimum number of people in a decision-making organization (like a legislature) that is necessary to conduct business (like making laws).
Since the very first meeting of Congress back in 1789, the Quorum Clause has meant a quorum could only be satisfied if a majority of members were physically present to cast their votes. Never in the Republic’s 230 odd years did people think the Quorum Clause permitted the use of proxy voting, a method by which members can vote through another member without physically being present. Thomas Jefferson certainly didn’t think the Congress in 1793 could vote by proxy to avoid Philadelphia—he insisted they meet in person, even if outside!
Consider another historical example. In 1918, the Spanish Flu ravaged the population, killing millions world-wide—675,000 of which were Americans. Yet, even for a disease vastly more devastating than yellow fever, Congress still met in person to conduct business and do the people’s work. During the Cold War, Congress was prepared to meet in person in the event of a nuclear attack, albeit at a separate and secret location.
Why? Why risk infection of a horrid disease or concentrated targeting in times of war? Because those Congresses, like Jefferson, knew the Quorum Clause mandated in-person-only quorums. The Constitution does not change in times of crisis.
In late 2022, the House of Representatives passed the Consolidated Appropriations Act. However, only 201 of the members were physically present. The other 226 members voted by proxy under a series of special voting rules implemented at the beginning of the COVID-19 outbreak. Such proxy voting rules go against the very foundation of the Quorum Clause.
The result of the Consolidated Appropriations Act directly affects the people of Texas. Certain provisions impose heavy legal obligations upon employers, and others create new federal programs that undermine the state’s immigration policies. The lack of a physical quorum in the passage of the law makes the entire Act illegal, and the current lawsuit is aimed at preventing the federal government from enforcing any of the law’s provisions.
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What’s at Stake
Mountain States Legal Foundation represents ten members of the House of Representatives who have filed an amicus curiae brief in support of the State of Texas. It is the role of the courts to ensure legislation does not exceed what the Constitution allows.
Our history is littered with wars, pandemics, natural disasters, terrorist attacks, and the like, and Congress has never voted by proxy. This is undoubtedly due to the Constitution’s language that mandates physical presence is necessary. The American people are best served when their elected representatives can meet face to face to debate, discuss, and persuade one another before casting their vote. To add insult to injury, the proxy voting allowed during the COVID-19 pandemic extended far beyond the opening of the U.S. Capitol, and many members chose to vote via proxy not for fear of catching the virus, but for sake of convenience.
The Constitution must be followed especially during crises—there would be no point in a supreme law if the legislature and courts could merely ignore it when things get too tough. The strength of a nation’s character is determined by its commitment to its governing principles not in the good times, but in the bad times.
If Congress has no Constitution to answer to, our Constitution has no real authority. Americans elect their representatives, and they are required to swear an oath to uphold our national charter. Mountain States has filed this amicus on behalf of Representative Charles “Chip” Roy of Texas, and nine other Representatives. Representative Roy has been in the fight against the special proxy voting rules since they were first implemented in 2020, at the behest of then-Speaker Nancy Pelosi. Representative Roy believes voting by proxy delegitimizes the House of Representatives and disintegrates the bond of trust between citizens and elected officials. “The ongoing damage this blatantly unconstitutional scheme is doing to the House as an institution and our constitutional order as a whole” must come to an end.
Case Timeline
- May 2020: The House of Representatives adopted proxy voting for the first time in our nation’s history, at the behest of then-Speaker Nancy Pelosi.
- December 2022: The House voted on the Consolidation Appropriations Act, despite lacking a quorum of members present.
- February 2023: The State of Texas filed a complaint against the Biden Administration for improperly passing the Consolidation Appropriations Act without a quorum.
- April 2023: The State of Texas filed its motion for preliminary injunction against the Consolidation Appropriations Act.
- April 2023: MSLF filed an amicus on behalf of Representative Chip Roy and nine other members of Congress, in support of the motion for preliminary injunction.
- October 2024: MSLF filed a second amicus brief with the Fifth Circuit Court of Appeals, asserting that the Framers intended for a Representative’s physical presence to be required in order to establish a quorum for conducting Congressional business. We emphasize that the Constitution does not provide exceptions for pandemics or other emergencies.
- August 15, 2025: The Fifth Circuit Court of Appeals concluded that the Quorum Clause does not require physical presence, reversing the judgment of the district court and vacating the district court’s permanent injunction.
