Analysis: If courts follow Constitution, Biden's $1.7 trillion spending plan is dead

February 22, 2023
World Net Daily

This story was originally published by the WND News Center.

The Daily Caller News Foundation earlier reported on the lawsuit by Ken Paxton against Biden for putting his signature on the Consolidated Appropriations Act of 2023 bill.

It's because the bill was signed after being adopted in a vote in the House which didn't even have a majority of the members present.

The Constitution's only options for the House when there is no majority would be to "adjourn from day to day" or "compel the attendance of absent members."

It charges the Biden signature "was nullity" because the spending spree never actually was adopted by the House.

Now an analysis by Margot Cleveland, the senior legal correspondent at the Federalist, points out that the law is clear, the evidence is there, the circumstances are uncontested, and if the judiciary does its "constitutional duty," the law will be ruled void.

Cleveland also is a contributor to National Review Online, the Washington Examiner, Aleteia, and, and has been published in the Wall Street Journal and USA Today. She's a graduate of the Notre Dame Law School, where she earned the Hoynes Prize – the law school’s highest honor. She spent years as a law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals.

She noted if the courts agree with the complaint, Biden's "spending spree" is dead.

Paxton's complaint, she said, "makes a seemingly unassailable case that the House of Representatives lacked the constitutionally mandated quorum to pass the appropriations act. Nonetheless, the enormity of a court striking an omnibus spending bill may leave the judicial branch shrinking from its constitutional duty."

The vote that was invalid, she said, was when the House voted to approve changes to the bill made by the Senate. "Only 201 of the representatives were present. Nonetheless, the House proceeded with the vote. But it didn’t just count the votes of the present members. It added to the tally an extra 226 votes, cast by present House lawmakers on behalf of absent ones who had appointed them 'proxies,'" she said.

But the Constitution actually only allows: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties, as each House may provide."

She explained Paxton's charges, "It would make little sense for the Constitution to expressly say that if a quorum were lacking, the House was 'authorized to compel the attendance of absent members."

"Proxy" voting was allowed by ex-House Speaker Nancy Pelosi during COVID for health reasons.

Cleveland continued:

During the Yellow Fever epidemic, Thomas Jefferson urged President Washington to keep Congress sitting in Philadelphia, then the capital, even if it meant meeting ‘in the open f[ie]lds.’ … [I]n the aftermath of that epidemic, the Third Congress enacted a law — still in force today — stating that ‘[w]henever Congress is about to convene, and from the prevalence of contagious sickness, or the existence of other circumstances, it would, in the opinion of the President, be hazardous to the lives or health of the members to meet at the seat of Government,’ the President could ‘convene Congress at such other place as he may judge proper.’

There would be no reason to meet “in open fields” or to “convene Congress at such other place as he may judge proper” if the House and Senate could instead opt for proxy voting without the attendance of elected officials. As the Texas lawsuit stresses, through the Civil War, the Spanish flu pandemic, the Cold War, and the 9/11 terrorist attacks, Congress met in person while preparing to conduct business in the event of extraordinary circumstances, such as “in a secret congressional bunker hidden in West Virginia” in the case of a nuclear attack on the Capitol.

She noted, "The Constitution is the Constitution — whether the questions that arise dealing with the free exercise of religion, freedom of speech, the right to keep and bear arms, or more mundane matters such as the quorum clause. Whether courts will see it that way, however, remains to be seen, with district court Judge James Hendrix — a Trump appointee, who was first nominated by Barack Obama — put to the test first."

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