WASHINGTON — A federal appeals court sounded ready Wednesday to back the power of Speaker Nancy Pelosi and House Democrats to fine three Republican members who violated a pandemic-era rule that required lawmakers to wear a mask on the House floor.
An attorney for Republican Reps. Thomas Massie of Kentucky, Marjorie Taylor Greene of Georgia and Ralph Norman of South Carolina told the judges at an oral argument that the mask requirements on the House floor and fines used to enforce them are unconstitutional.
But questions from all three judges on a panel of the U.S. Court of Appeals for the District of Columbia Circuit expressed skepticism that courts had the power to tell the lawmakers how to run the House — part of the reason why a lower court threw out the lawsuit in March.
Massie’s challenge is one of a handful of cases by Republicans to a series of Democrat-backed changes to House rules, all of which have been dismissed for similar reasons.
The Supreme Court in January declined to hear a challenge led by Minority Leader Kevin McCarthy to lower court rulings that dismissed House Republicans’ constitutional challenge to COVID-19-related proxy voting rules.
And a trio of Republicans have appealed a district court order that threw out their challenge to a House rule adopted after the Jan. 6, 2021, attack on the Capitol that required members to pass through magnetometers as they entered the chamber.
The D.C. Circuit argument Wednesday on Massie’s case about the mask requirement comes the day after a midterm election which might give Republicans control of the House in the next Congress that starts in January, and along with it the ability to set rules.
In January 2021, the Democratic-led House adopted the resolution to fine a member $500 for the first failure to wear a mask on the floor and $2,500 for each subsequent failure, and allowed the House to deduct that from the net salary of the member.
Massie, Greene and Norman deliberately entered the House on May 18 and 19 of that year without wearing a mask, the House contends. The policy was lifted in February 2022.
Christopher Wiest, arguing for the Republicans, tried to distinguish the case from others where the courts have held that House rules cannot be challenged in court. He said the fines deducted from the pay of the three members violate the 27th Amendment, which prohibits alterations to congressional pay.
The House could have enforced the rule in a different way, Wiest said. “There is a full panoply of avenues available to them that do not involve withholding of pay in violation of the 27th Amendment,” he said.
Judge David S. Tatel pointed out the mask fine was tied to the House’s ability to control access to its own chamber. “It is a deduction of pay for coming on the floor of the House without a mask, that is about accessing legislative functions,” Tatel said.
And Judge Neomi Rao, an appointee of former President Donald Trump, questioned whether the automatic nature of the deduction would be any different from sending the violators an invoice.
The other members of the panel also questioned whether the challengers’ view of the 27th Amendment would mean tax or health care withholdings also violated the Constitution.
Douglas Letter, representing the House, argued the chamber has a long history of imposing fines for rule violations.
“It would be a remarkable ruling of this court, and interfere with the separation of powers, to step into the House’s ability to fine its own members,” Letter said.
Wiest pushed back that the 27th Amendment was only ratified in 1992, which should change how the court considered the history of House fines. He also pointed out the House’s own arguments for fines had no limits.
“In their view, if they wanted to go back to flogging, they could,” Wiest said.
Wiest also said that under House leadership’s view, the House could execute its members for rules violations and quipped, “That would be a de facto expulsion as well.”
