A three-judge panel in the 5th U.S. Circuit Court of Appeals, comprising two Obama appointees and one Trump appointee, grilled attorneys for the state of Texas and the Justice Department during oral arguments over whether a quorum was present in the House on Dec. 22 of that year.

“I’m just wondering, if 218 members can say, ‘Madam Speaker, you’ve got my proxy to be present, so anytime you want to convene the House you’ve got a quorum.’ Can that work?” one judge asked.

The case was brought by Texas against the Department of Justice during the Biden administration. Texas argued that a law authorized by the omnibus bill called the Pregnant Workers Fairness Act unconstitutionally subjected Texas to expanding accommodations for women seeking abortions because a quorum was not present when the House voted on the omnibus bill. Under Attorney General Pam Bondi, the DOJ is continuing to fight the case, arguing the House legitimately passed the omnibus bill.

DOJ attorney Courtney Dixon argued that a lower court’s ruling last year that a constitutionally required quorum was not present for the bill was a “remarkable intrusion” by the judicial branch into legislative affairs. Dixon said a quorum was present in any case.

There’s no “physical presence requirement” in the Constitution, Dixon said.

Attorney Jacob Beach, appearing on behalf of Texas Attorney General Ken Paxton’s office, argued that there had been “235 years of consistent practice” of in-person quorums and that Pelosi’s novel and extraordinarily liberal allowance of proxy voting, ostensibly because of the COVID-19 pandemic, was the first breach of that precedent.

If the 5th Circuit upholds a lower court’s ruling that the Pregnancy Workers Fairness Act is invalid because of a lack of quorum in the House, the appellate judges observed that it could open the door for other parts of the behemoth 2022 appropriations bill to face challenges. One judge asked Beach how to overcome this concern.

“What’s the authority that [Texas] can sever out and attack injunctively just the portion Texas doesn’t like but still keep the rest when the premise of the whole argument is the entire bill was not passed constitutionally?” the judge asked.

Proxy voting became a source of controversy in 2022 as House lawmakers routinely skipped out on showing up to work in Washington and voting in person. In a form they were required to fill out each time they voted remotely, they would ostensibly cite the “ongoing health emergency.”

Former House Speaker Kevin McCarthy, a California Republican, called the final omnibus vote, in which 226 members voted remotely, a “stain” on Congress and ended proxy voting when he took over the speaker’s gavel.

While lawmakers from both parties openly abused proxy voting, a study at the time found Democrats used it far more. Republicans have since shown heavy support for in-person work, which coincides with President Donald Trump’s stated goal of returning government workers to their offices.

The oral arguments on Tuesday also came after an incident with Rep. Byron Donalds (R-FL) reignited debate over proxy voting this month. A lawmaker allowing a colleague to vote on his or her behalf is an ethics violation. Donalds was caught filming a Real Time with Bill Maher episode in California while simultaneously casting two votes in the lower chamber, where Republicans hold a wafer-thin majority.

HOUSE PROXY VOTING DEBATE REIGNITES AFTER BYRON DONALDS ACCUSED OF VOTER FRAUD

Donalds deflected when questioned about the incident, but Democrats brought attention to it on the House floor, noting that Donalds was among the Republicans who ardently opposed the proxy voting permitted by Pelosi.

A small bipartisan House group is also advocating a narrow use of proxy voting, urging passage of a bill to permit the practice for new parents or women with pregnancy-related medical needs.