Kevin McCarthy v. Nancy Pelosi ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 2, 2020 Decided July 20, 2021
No. 20-5240
KEVIN OWEN MCCARTHY, THE HONORABLE, IN HIS OFFICIAL
CAPACITY AS HOUSE MINORITY LEADER AND MEMBER OF THE
UNITED STATES HOUSE OF REPRESENTATIVES FOR THE
CALIFORNIA 23RD CONGRESSIONAL DISTRICT, ET AL.,
APPELLANTS
v.
NANCY PELOSI, THE HONORABLE, IN HER OFFICIAL CAPACITY
AS SPEAKER OF THE HOUSE OF REPRESENTATIVES AND
MEMBER OF THE UNITED STATES HOUSE OF REPRESENTATIVES
FOR THE CALIFORNIA 12TH CONGRESSIONAL DISTRICT, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-01395)
Charles J. Cooper argued the cause for appellants. With
him on the briefs were Michael W. Kirk, Harold S. Reeves, J.
Joel Alicea, Steven J. Lindsay, and Elliot S. Berke.
John C. Eastman and Anthony T. Caso were on the brief
for amici curiae Center for Constitutional Jurisprudence, et al.
in support of appellants.
2
Douglas N. Letter, General Counsel, U.S. House of
Representatives, argued the cause for appellees. With him on
the brief were Todd B. Tatelman, Principal Deputy General
Counsel, Megan Barbero and Josephine T. Morse, Deputy
General Counsel, Adam A. Grogg, Assistant General Counsel,
William E. Havemann, Associate General Counsel, Michael R.
Dreeben, Samantha M. Goldstein, Kendall Turner, Ephraim A.
McDowell, Anna O. Mohan, and Alec Schierenbeck.
Before: SRINIVASAN, Chief Judge, ROGERS and WALKER,
Circuit Judges.
Opinion for the court filed by Chief Judge SRINIVASAN.
SRINIVASAN, Chief Judge: In response to the COVID-19
pandemic, the House of Representatives adopted a Resolution
enabling Members who are unable to attend proceedings in
person to cast their votes and mark their presence by proxy. A
number of Representatives and constituents challenge the
constitutionality of the Resolution. They argue that various
constitutional provisions compel in-person participation by
Representatives in all circumstances, including during a
pandemic.
The district court dismissed the suit for lack of jurisdiction.
The court concluded that the Resolution and its implementation
lie within the immunity for legislative acts conferred by the
Constitution’s Speech or Debate Clause. We agree, and we
thus affirm the district court’s dismissal of the case.
3
I.
A.
In March 2020, the World Health Organization declared
COVID-19 a pandemic. H. Rep. No. 116-420, at 2 (2020). In
response to the unprecedented public-health crisis, the United
States House of Representatives adopted House Resolution 965
in May 2020. The Resolution establishes a process under
which House Members can cast their votes and mark their
presence by proxy if they cannot personally attend proceedings
due to the public-health emergency. See H.R. 965 (May 15,
2020).
The Resolution states:
[A]t any time after the Speaker or the Speaker’s
designee is notified by the Sergeant-at-Arms, in
consultation with the Attending Physician, that
a public health emergency due to a novel
coronavirus is in effect, the Speaker or the
Speaker’s designee, in consultation with the
Minority Leader or the Minority Leader’s
designee, may designate a period (hereafter in
this resolution referred to as a “covered period”)
during which a Member who is designated by
another Member as a proxy . . . may cast the
vote of such other Member or record the
presence of such other Member in the House.
Id. § 1(a). A covered period automatically ends in 45 days, but
the Speaker or her designee may extend the period for an
additional 45 days if the Speaker “receives further notification
from the Sergeant-at-Arms, in consultation with the Attending
4
Physician, that the public health emergency due to a novel
coronavirus remains in effect.” Id. § 1(b)(1)–(2).
Any Member “whose presence is recorded by a designated
proxy,” or whose vote is cast by a proxy, “shall be counted for
the purpose of establishing a quorum.” Id. § 3(b). To designate
a proxy, a Member submits to the Clerk of the House a “signed
letter . . . specifying by name the Member who is [so]
designated.” Id. § 2(a)(1). The letter must state that the
Member designating a proxy is unable to attend proceedings in
person because of the public-health emergency. Id. § 2(a)(1);
Remote Voting by Proxy Regulations Pursuant to House
Resolution 965 § A.1.i, 166 Cong. Rec. H2257 (daily ed. May
15, 2020).
Members cannot grant a “general proxy” giving another
Member blanket authority to vote for them. Instead, a Member
acting as a proxy must “obtain an exact instruction” in writing
that is specific to a particular vote or quorum call. H.R. 965
§ 3(c)(1), (c)(6). And if the instruction pertains to a bill whose
text subsequently changes, no proxy vote can be cast unless
there is a new instruction. Remote Voting by Proxy
Regulations § C.4, 166 Cong. Rec. H2257.
A Member can act as a proxy for a maximum of ten other
Members at any one time. H.R. 965 § 2(a)(4). Members
serving as proxies must announce on the House floor which
remote Members they represent and what instructions they
have received. Id. § 3(c)(2). The Clerk of the House maintains
a publicly available list of proxy designations. Id. § 2(b).
B.
On May 20, 2020, Speaker of the House Nancy Pelosi
authorized proxy voting pursuant to the Resolution for a period
5
of 45 days. There have since been several extensions, the most
recent of which expires on August 17, 2021. Press Release,
Dear Colleague to All Members on Extension of Remote Voting
‘Covered Period,’ SPEAKER OF THE HOUSE NANCY PELOSI
(June 28, 2021), https://www.speaker.gov/newsroom/62821-0.
On May 26, 2020, House Minority Leader Kevin
McCarthy—along with dozens of other Representatives and
several constituents—challenged the constitutionality of the
Resolution in a lawsuit against Speaker Pelosi, the Clerk of the
House, and the House Sergeant-at-Arms. The suit contends
that various constitutional provisions require Members to be
physically present on the House floor in order to count towards
a quorum and cast votes. The plaintiffs seek a declaration that
House Resolution 965 is unconstitutional, as well as
preliminary and permanent injunctions barring the defendants
from implementing proxy voting in the House.
The defendants moved to dismiss the action, arguing that
it is precluded by the Constitution’s Speech or Debate Clause,
and alternatively, that the plaintiffs lack standing to bring it.
The district court granted the motion on the ground that the
Speech or Debate Clause bars consideration of the suit. The
plaintiffs now appeal.
II.
The defendants argue that we should not reach the merits
of the constitutional challenge in this case for the same two
reasons they advanced in the district court: first, the Speech or
Debate Clause prevents us from considering the challenge; and
second, the plaintiffs lack standing. Both those arguments state
jurisdictional objections. See Rangel v. Boehner, 785 F.3d 19,
22 (D.C. Cir. 2015). And while we must resolve jurisdictional
questions before we can address the merits of a dispute, we can
6
take up jurisdictional issues in any order. Id.; see Sinochem
Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431
(2007). We opt to begin with the question of Speech-or-
Debate-Clause immunity. Because we agree with the district
court that the Clause bars consideration of the plaintiffs’ suit,
we have no need to consider whether they have standing.
The Speech or Debate Clause states that “Senators and
Representatives . . . for any Speech or Debate in either House
. . . shall not be questioned in any other Place.” U.S. CONST.
art. I, § 6, cl. 1. The Speech or Debate Clause occasioned
neither speech nor debate at the Constitutional Convention: the
Clause gained approval “without discussion and without
opposition.” United States v. Johnson, 383 U.S. 169, 177
(1966); Rangel, 785 F.3d at 22.
The central object of the Speech or Debate Clause is to
protect the “independence and integrity of the legislature.”
Johnson, 383 U.S. at 178. The Clause does so by preventing
“intimidation of legislators by the Executive and accountability
before a possibly hostile judiciary.” Gravel v. United States,
408 U.S. 606, 617 (1972).
While the Clause by terms prohibits “Speech or Debate in
either House” from being “questioned in any other Place,” see
U.S. CONST. Art. I, sec. 6, it is long settled that the Clause’s
protections range beyond just the acts of speaking and
debating. To “confine the protections of the Speech or Debate
Clause to words spoken in debate would be an unacceptably
narrow view.” Gravel, 408 U.S. at 617. Rather, the “Supreme
Court has consistently read the Speech or Debate Clause
‘broadly’ to achieve its purposes.” Rangel, 785 F.3d at 23
(quoting Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491,
501 (1975)); see Gravel, 408 U.S. at 624.
7
Of particular salience, the Clause applies not just to speech
and debate in the literal sense, but to all “legislative acts.” Doe
v. McMillan, 412 U.S. 306, 311–12 (1973). Legislative acts
are those “generally done in a session of the House by one of
its members in relation to the business before it.” Kilbourn v.
Thompson, 103 U.S. 168, 204 (1880); see Gravel, 408 U.S. at
624. Consequently, while the “heart of the Clause is speech or
debate in either House,” the Clause reaches matters forming
“an integral part of the deliberative and communicative
processes by which Members participate in committee and
House proceedings with respect to the consideration and
passage or rejection of proposed legislation or with respect to
other matters which the Constitution places within the
jurisdiction of either House.” Gravel, 408 U.S. at 625.
Additionally, although the Clause’s terms expressly
prohibit questioning of “Senators or Representatives” in
connection with legislative acts, it is well established that the
Clause’s protections extend to Congressional aides and staff.
See id. at 618, 621; Rangel, 785 F.3d at 24–25. The Clause
applies to aides and staff “insofar as [their] conduct . . . would
be a protected legislative act if performed by [a] Member.”
Gravel, 408 U.S. at 618. The “key consideration, Supreme
Court decisions teach, is the act presented for examination, not
the actor.” Walker v. Jones, 733 F.2d 923, 929 (D.C. Cir.
1984).
Here, the acts presented for examination are
quintessentially legislative acts falling squarely within the
Clause’s ambit. The challenged Resolution enables Members
to cast votes by proxy, and the “act of voting” is necessarily a
legislative act—i.e., something “done in a session of the House
by one of its members in relation to the business before it.”
Gravel, 408 U.S. at 617 (quoting Kilbourn, 103 U.S. at 204);
see id. at 624 (“voting by Members” is “protected”); Walker,
8
733 F.2d at 929 (Clause covers “such activity integral to
lawmaking as voting”).
House rules governing how Members may cast their votes
thus concern core legislative acts. And here, the acts sought to
be enjoined by the plaintiffs’ suit all involve implementation of
proxy voting pursuant to the Resolution. The suit seeks to bar:
(i) the Sergeant-at-Arms from notifying the Speaker of the
existence of a public health emergency due to COVID-19—the
triggering condition for proxy voting under the Resolution; (ii)
the Speaker from designating a covered period in which proxy
voting will be permitted; (iii) the Clerk from accepting proxy
letters from Members and maintaining a proxy list; and (iv) the
Clerk from tabulating and recording proxy votes and counting
proxy Members as present for quorum purposes.
Because those actions all effectuate proxy voting under the
Resolution, they form “an integral part of the . . . processes by
which Members participate in . . . House proceedings with
respect to the . . . passage or rejection of proposed legislation.”
Gravel, 408 U.S. at 625. Indeed, we are hard-pressed to
conceive of matters more integrally part of the legislative
process than the rules governing how Members can cast their
votes on legislation and mark their presence for purposes of
establishing a legislative quorum.
Our decision in Consumers Union of United States, Inc. v.
Periodical Correspondents’ Association, 515 F.2d 1341 (D.C.
Cir. 1975), provides an instructive frame of reference.
Consumers Union involved a challenge to congressional rules
requiring members of the press to apply to gain access to the
House and Senate press galleries. Id. at 1342, 1344–45. We
found the challenge barred by the Speech or Debate Clause,
concluding that administration of seating in the press galleries
is a legislative act. Id. at 1350.
9
We explained that, under the Supreme Court’s decision in
Gravel, legislative acts for purposes of Speech-or-Debate-
Clause immunity include both (i) matters pertaining “to the
consideration and passage or rejection of proposed legislation,”
and (ii) “other matters which the Constitution places within the
jurisdiction of either House.” Gravel, 408 U.S. at 625;
Consumers Union, 515 F.2d at 1349–50. Administration of
seating in the press galleries, we specifically acknowledged,
did not fall within the first of those categories. Consumers
Union, 515 F.2d at 1350. But we concluded it fell within the
second category, explaining that “Gravel . . . in delineating
legislative acts, . . . said that . . . the Clause [also] applied to
‘other matters which the Constitution places within the
jurisdiction of either House.’” Id. at 1351 (quoting Gravel, 408
U.S. at 625).
This case, if anything, more centrally involves legislative
acts than did Consumers Union. As in that case, the challenged
actions here fall within Gravel’s second category, i.e., matters
that the Constitution places within the House’s jurisdiction: the
House adopted its rules for proxy voting under its power to
“determine the Rules of its Proceedings,” U.S. CONST. art. I,
§ 5, cl. 2. But while both this case and Consumers Union thus
implicate Gravel’s second category, this case, unlike
Consumers Union, also implicates Gravel’s first category:
rules enabling proxy voting squarely concern “the direct
business of passage or rejection of proposed legislation.”
Consumers Union, 515 F.2d at 1351; see Gravel, 408 U.S. at
625. If the Speech or Debate Clause covers the administration
of seating in the press galleries, in short, it must also cover the
administration of voting by Members.
A comparison between this case and the circumstances we
faced in Walker v. Jones, 733 F.2d 923, is also illuminating.
10
Walker involved a suit brought by the general manager of the
House Restaurant System alleging that a House Member had
terminated her employment because of her gender. Id. at 925.
We rejected the House Member’s contention that the Speech or
Debate Clause barred the suit. “To characterize personnel
actions related to [food] services as ‘legislative’ in character,”
we determined, “is to stretch the meaning of the word beyond
sensible proportion.” Id. at 931. By the same token, to
characterize actions related to the casting of votes by Members
as not “legislative” in character, we believe, would be to resist
the meaning of the word beyond sensible proportion.
In arguing nonetheless that the Speech or Debate Clause
does not bar their suit, the plaintiffs in this case seek to draw a
fundamental divide between the enactment of legislation and
the execution of it. As the plaintiffs see it, the acts of voting
on and adopting the Resolution lie within the Clause’s zone of
immunity, but acts undertaken in implementing the Resolution
do not. In their view, then, the Clause does not insulate from
judicial review the conduct they seek to enjoin—e.g., the
Sergeant-at-Arms’s notifying the Speaker of a public health
emergency, the Speaker’s ensuing designation of a period in
which proxy voting may occur, and the Clerk’s acceptance of
proxy letters and counting of proxy votes. Those actions, in the
plaintiffs’ conception, merely implement the Resolution and
thus fall outside the Speech or Debate Clause’s protections.
That argument does not withstand scrutiny. The salient
distinction under the Speech or Debate Clause is not between
enacting legislation and executing it. The pivotal distinction
instead is between legislative acts and non-legislative acts. So
in Consumers Union, the Clause encompassed not just the
promulgation of the rules governing seating in the press
galleries, but also the administration and enforcement of those
rules. See 515 F.2d at 1350–51. The suit there sought to
11
address, among other things, a specific decision to deny access
to a particular publication in implementation of the challenged
rules. See id. at 1345–46. That action fell within the Clause’s
protections, and we accordingly spoke of the Clause’s
applicability to conduct “enforcing internal rules of Congress”
or “execut[ing] . . . internal rules.” Id. at 1350–51. The Clause,
then, encompasses the execution of legislation when the
executing actions themselves constitute legislative acts. That
was true in Consumers Union and is no less—and, if anything,
more—true here.
The three decisions principally relied on by the
plaintiffs—Kilbourn, 103 U.S. 168, Dombrowski v. Eastland,
387 U.S. 82 (1967), and Powell v. McCormack, 395 U.S. 486(1969)—are not to the contrary. In each of those cases, “the
speech or debate privilege was held unavailable to certain
House and committee employees.” Gravel, 408 U.S. at 618(discussing Kilbourn, Dombrowski, and Powell). As the
Supreme Court has explained in specific reference to those
three decisions, they “do not hold that persons . . . are beyond
the protection of the Clause when they perform or aid in the
performance of legislative acts.” Id. The Court thus
necessarily considered the persons whose conduct was at issue
in those cases to have been uninvolved “in the performance of
legislative acts.”
To be sure, the acts in question in those cases could be
described as the execution of legislative action. See id. at 618–
20. Kilbourn, for instance, concerned a House employee’s
arrest of a particular person in execution of a resolution
authorizing the arrest of that individual. Id. at 618. And
conduct carrying out legislation is beyond the Speech or
Debate Clause’s compass when it is not itself a legislative act,
as was the case in Kilbourn: the arrest was not “an integral
part” of the “processes by which Members participate in . . .
12
House proceedings with respect to the consideration and
passage or rejection of proposed legislation or with respect to
other matters which the Constitution places within the
jurisdiction of either House.” Id. at 625.
But whereas the resolution in Kilbourn authorized the
arrest of a third party, the resolution in this case establishes
internal rules governing the casting of votes by Members. And
conduct implementing the latter resolution—including the
Clerk’s counting and recording of proxy votes—is itself a
legislative act, pertaining directly “to the consideration and
passage or rejection of proposed legislation.” Id. That conduct
thus falls comfortably within the immunity afforded by the
Speech or Debate Clause.
* * * * *
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.