The lawmakers made the arguments in an amicus brief, authored by Mountain States Legal Foundation attorneys, after McConnell submitted his own brief in a case that could upend a $1.7 trillion omnibus spending bill that Congress passed in December 2022.

“Amici are especially concerned that other members of Congress, such as Senate Minority Leader McConnell, have urged this Court to essentially hold that even the most abusive of legislative procedures is immune from judicial review,” the attorneys wrote.

The case, which is making its way through the conservative 5th U.S. Circuit Court of Appeals, centers on the question of whether a quorum was present when more than half of the House voted by proxy on the omnibus bill. A lower court previously ruled in favor of Texas Attorney General Ken Paxton and against the Department of Justice, finding that a quorum was not present. The DOJ has appealed the ruling.

McConnell sided with the DOJ, saying in an amicus brief in August that while he strongly opposed the practice of proxy voting, he did not think the courts should have a say over it.

In 2020, however, McConnell conveyed a different perspective when he warned former House Speaker Nancy Pelosi (D-CA) of the constitutional dilemma that her proxy voting policy could present.

“There will be enormous constitutional questions around anything the House does if they fail to demonstrate a real quorum but plow ahead anyhow,” McConnell said in a floor speech at the time.

Roy, in what marked the Texas Republican’s second amicus brief in the case, highlighted McConnell’s remark.

“His comments reflected a clear appreciation for the House’s constitutional duty to assemble a majority of its Members within the halls of Congress before conducting the People’s business. Yet now, Senator McConnell has changed his tune,” attorneys for Roy and the other lawmakers wrote.

Pelosi authorized proxy voting in 2020 in the name of COVID-19, effectively allowing lawmakers to vote remotely instead of in Washington, D.C., as long as they signed a form that cited the “ongoing health emergency.”

The practice began drawing controversy as lawmakers from both parties openly abused the option, often appearing with no illness in their homes, on the campaign trail, or on vacation while casting House votes by proxy. Less than halfway through 2022, former Rep. Kai Kahele, a Hawaii Democrat, was found by Hawaii Public Radio to have voted by proxy on all but five of 125 votes that had been cast in the House. He later defended his absence from Capitol Hill, saying he was worried about getting sick or spreading the virus to his family.

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Former House Rules Committee ranking member Tom Cole (R-OK) observed in 2022 that “magically proxy voting doubles on Fridays.”

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

Read the amicus brief below: