Texas AG: Most of the Federal Government Unconstitutional

In recent news, Texas’s Republican Attorney General Ken Paxton filed a lawsuit earlier this month that challenges the constitutionality of the $1.7 trillion spending law.

This law enables most of the federal government, including the US military, to operate through September of 2023. Paxton argues that the bill is unconstitutional because many lawmakers who voted for it did so by proxy.

However, legal experts believe that Paxton’s argument is weak and goes against the Constitution’s explicit text. In fact, a bipartisan panel of a powerful federal appeals court in Washington, DC already rejected a similar lawsuit in 2021.

Despite this, Paxton continues to pursue weak legal arguments that undercut federal policies before right-wing judges that he has personally chosen because of their ideology.

This often leads to chaos throughout the government, which can last months or longer, before a higher court steps in.

It’s worth noting that Texas’s federal courts give plaintiffs an unusual amount of leeway to choose which judge will hear their case, which is something Paxton takes advantage of to ensure that his lawsuits will be heard by judges who are likely to toe the Republican line.

These decisions are then appealed to the deeply conservative United States Court of Appeals for the Fifth Circuit. While the current lawsuit is unlikely to succeed, it sheds light on Paxton’s broader litigation strategy.

Paxton initiated the Garland case in Lubbock, Texas, where all federal lawsuits are heard by a Republican appointee. In this case, Judge James Wesley Hendrix will preside, as two-thirds of such cases are automatically assigned to him. Hendrix was appointed by former President Trump to a federal court in Texas and has a relatively short tenure.

While he made one decision that went against a federal statute requiring hospitals to perform medically necessary abortions, it’s uncertain whether he would go as far as to declare most of the United States government unconstitutional.

The Texas federal bench is also riddled with judges — Matthew Kacsmaryk, Drew Tipton, and Reed O’Connor are probably the best known among them — who’ve largely behaved as rubber stamps for any right-leaning litigant who appears before them. It’s notable that Paxton chose to bring this case in Lubbock, where he was likely to draw Hendrix as his judge, rather than bringing this suit before Kacsmaryk or Tipton (Kacsmaryk hears 100 percent of federal cases filed in Amarillo, Texas. Tipton hears all cases filed in Victoria, Texas). But it remains to be seen whether Hendrix will show the same contempt for the rule of law as a Kacsmaryk or a Tipton.

So, while this case probably isn’t an immediate cause for alarm, it is a reminder that no lawsuit filed in Texas’s federal courts can safely be ignored.

Paxton’s lawsuit claims that the law funding the federal government is unconstitutional because it was passed using proxy voting

In 2020, at the height of the Covid-19 pandemic, the US House of Representatives voted to permit its members to cast votes by proxy for as long as the public health emergency arising out of that pandemic was in effect. Under this rule, a member of the House who is present in the Capitol may cast proxy votes on behalf of up to 10 colleagues, provided that those colleagues give the member written authorization to act as their proxy, and provided that those colleagues give the member instructions on how to vote.

At the time it was enacted, the constitutionality of this rules change was uncertain because no court had ever ruled on whether proxy voting is permissible.

Indeed, shortly after the proxy voting rule took effect, 21 House Republicans — most likely emboldened by the fact that the federal judiciary is dominated by Republican appointees — filed a lawsuit claiming that the new House rule was unconstitutional. But that case, known as McCarthy v. Pelosi, was rejected by a bipartisan panel of the US Court of Appeals for the District of Columbia Circuit. The Supreme Court decided not to review that decision in January of 2022.

The lawsuit filed by Texas Attorney General Ken Paxton arguing that proxy voting in the US House of Representatives is unconstitutional is unlikely to succeed for three legal reasons. First, the Constitution is silent on what process Congress must use to determine if a quorum is present and does not require members to be physically present to count towards a quorum.

Second, the Constitution grants the House of Representatives the authority to determine the rules of its proceedings, including whether a member can contribute to a quorum while present only by proxy. Third, the speech and debate clause in the Constitution prohibits courts from interfering with how the House conducts votes on legislation, including voting by members on legislation.

The article discusses a lawsuit filed by Texas Attorney General Ken Paxton challenging the constitutionality of a House rule allowing members to vote by proxy during the COVID-19 pandemic.

The article argues that the lawsuit is unlikely to succeed because the rule is likely protected by the speech and debate clause and because the case involves a political question that is beyond the reach of the judiciary.

The article also notes that the judge assigned to the case, Judge Hendrix, has a thin record and it is unclear whether he would be willing to order a government shutdown as Paxton is seeking.

However, the article suggests that Paxton’s decision to file the lawsuit in a location where he is likely to draw Judge Hendrix suggests that he believes he has a chance of obtaining a disruptive decision. Ultimately, the article concludes that it is unlikely that even the conservative Supreme Court would order a government shutdown in this case, but there could be chaos in the interim.