Speaker Johnson appears aligned with predecessor Pelosi in defending House authority against GOP members' mask mandate lawsuit

 December 23, 2023

Conservative House Speaker Mike Johnson (R-LA) has been forced into a position he'd likely rather not take that has him appearing to be in alignment with certain controversial policies imposed by former Speaker Nancy Pelosi (D-CA).

Johnson and House GOP leadership are defending against a lawsuit filed by a trio of House Republicans that challenged Pelosi's pandemic-related mask mandate for congressional members that was enforced by fines deducted from members' salaries, according to Raw Story.

In actuality, the House Speaker is defending the underlying constitutional authority of Congress to set its own rules as well as its constitutional immunity from lawsuits over official actions as a member of Congress, even as they disagree with the challenged policy at the center of the suit that has been pushed up to the Supreme Court.

Johnson's defense of House authority aligns him with Pelosi

The Atlanta Journal-Constitution reported Friday on the unenviable predicament for Speaker Johnson in appearing to defend former Speaker Pelosi's challenged mask mandate and enforcement scheme that was challenged by Reps. Marjorie Taylor Greene (R-GA), Thomas Massie (R-KY), and Ralph Norman (R-SC).

Those three members, among others, had defied Pelosi's mask mandate in 2021 and were hit with escalating fines that were deducted from their annual salaries. That prompted a lawsuit which argued that the fines were illegal and unconstitutional, but both a Washington D.C. district judge and the D.C. Circuit Court of Appeals rejected the challenge, which led the members to petition the Supreme Court to review and overturn the lower courts' rulings.

Johnson and House GOP attorneys have now been compelled to counter that petition and argue that the mask mandate and fines, even if disliked, were a legitimate exercise of congressional authority and did not warrant intervention by the Supreme Court.

"The rule was controversial, and all members of the current House Leadership voted against it," Johnson's attorneys said. "But this case is not about the wisdom of the rule or whether it was based on sound science."

Challenge against mask mandate and fines rejected by lower courts

The Hill reported in November how Reps. Greene, Massie, and Norman had filed a petition for Supreme Court review after their challenge against former Speaker Pelosi's 2020-2021 mask mandate and fines policy was defeated in the lower courts.

Their primary argument had been that the imposed fines for non-compliance -- $500 for a first offense, $2,500 for each additional violation, automatically deducted from their paychecks -- was unlawful because it violated the U.S. Constitution's 27th Amendment and its prohibition against congressional salary adjustments taking effect in the same term.

The district court and appeals court panel weren't buying that argument, though, and instead ruled that the members couldn't sue Pelosi over the policy since it was covered under the Constitution's Speech and Debate Clause that provides congressional members with immunity against lawsuits for actions taken or words spoken as part of their legislative duties.

Appeals court's ruling opens door for "physical" or even "medieval forms of punishment" for members

In their petition for review to the Supreme Court, the three House GOP members asked the court to consider the limits of the congressional Speech and Debate Clause's immunity as well as whether the punitive reductions in pay were violations of the 27th Amendment or Article I, Secs. 6 and 7, which deal with congressional compensation.

"The D.C. Circuit’s opinion ultimately places no limits on Speech or Debate Immunity," the petition stated. "To let the D.C. Circuit’s opinion stand would be to render the Twenty-Seventh Amendment non-justiciable in violation of this Court and the D.C. Circuit’s own precedents and to open the floodgates to unfathomable discipline."

"The House Rules, under this Doctrine, could impose physical punishment, flogging, or even more medieval forms of punishment, upon members and, under the D.C. Circuit’s precedent, no judicial remedy would be available, the Eighth Amendment notwithstanding," the filing added.

The Hill noted that former Speaker Pelosi and two other named defendants have until Dec. 27 to respond to the petition, after which the Supreme Court will decide whether or not to take up the requested review.

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