Paxton wrote in a brief filed Wednesday night that the U.S. 5th Circuit Court of Appeals should affirm a lower court’s decision that a quorum was not present for the bill’s passage.

The Texas attorney general, a Republican, first brought the lawsuit in February 2023 against Attorney General Merrick Garland, claiming Texas should not be forced to follow the Pregnant Workers Fairness Act, which was passed as part of the omnibus spending bill and would require employers to provide time off and other accommodations for women seeking abortions.

Judge James Wesley Hendrix, an appointee of former President Barack Obama, agreed with Paxton’s assessment that the bill’s passage was a violation of the Constitution’s quorum clause because only 201 House lawmakers were physically on Capitol Hill to cast a vote. More than half of the House, 226 members, voted remotely on the bill.

Garland has appealed the ruling before the 5th Circuit, a conservative appellate court whose decision in the case could upend the omnibus bill, causing ramifications beyond terminating enforcement of the PWFA, should the court agree with Paxton.

The case is a consequence of former House Speaker Nancy Pelosi’s (D-CA) liberal allowance of proxy voting, which she permitted beginning in May 2020, citing COVID-19. The practice allowed House lawmakers to vote remotely instead of on Capitol Hill.

However, even as in-person work resumed across the country, Pelosi allowed proxy voting as an option through the end of her term as speaker in December 2022. By that point, lawmakers from both parties were openly abusing it, though a study at the time found Democrats used it far more than Republicans.

The practice was a source of controversy as House lawmakers routinely skipped out on voting in person in Washington to stay in their hometowns despite not being sick. In a form they were required to fill out each time they voted remotely, they would cite the “ongoing health emergency.”

Scrutiny over the practice reached a peak right before the holidays in 2022, when more than half of House lawmakers voted remotely on the omnibus bill.

Former House Speaker Kevin McCarthy, who was House minority leader in December 2022, blasted the overwhelming number of Congress members who were absent from the Hill the day of the omnibus vote, saying that failing to show up for a massive spending bill vote would “forever stain this Congress.” Other Republicans raged about the lack of quorum, which they said required their colleagues to be physically present.

Then-Rules Committee ranking member Tom Cole (R-OK) observed that “magically proxy voting doubles on Fridays.” Former Wisconsin GOP Rep. Mike Gallagher said that “the over, overwhelming majority of members proxy voting are lying” on their proxy voting forms.

Paxton argued in his brief that Congress never permitted absent members “to count towards a quorum despite” wars, new technologies from the telegraph to phones and email, and other global health crises.

“To the contrary, history shows that ‘the physical presence of members of a body to approve legislation is the very essence of a democratic body,’” Paxton wrote, adding that the absence of that would be “legislation without representation.”

Department of Justice attorneys criticized the lower court’s ruling, saying it was out of line to interfere in House proceedings.

“The district court’s holding is a remarkable intrusion into the internal proceedings of a coordinate branch of government and it has no basis in the Quorum Clause’s text, history, or purpose,” the attorneys wrote.

Several interested parties have also submitted amicus briefs in the case, including Senate Minority Leader Mitch McConnell (R-KY).

McConnell, whose brief was authored by former Attorney General Bill Barr and other lawyers, argued in support of the DOJ, saying that the lower court undermined congressional authority by delegitimizing Congress’s passage of the spending bill.

“There are good reasons to criticize proxy voting, and particularly good reasons to have criticized the use of proxy voting in December 2022,” the lawyers wrote. “But not every principled disagreement has a remedy in court.”

Paxton and the DOJ have asked the appellate court to hear oral arguments as the next step in the case.