A federal judge expressed skepticism Thursday about a lawsuit brought by a few far-right members of the House challenging the fines they face for not wearing masks on the House floor.
“If members of the House and staff and law enforcement officials are susceptible to contracting the virus – either because of age or because of medical problems – are you saying they have to subject themselves to possible illness or death” by interacting with members not wearing masks, US District Judge Reggie Walton asked during a hearing in the case Thursday.
The case was brought by Republican Reps. Thomas Massie of Kentucky, Ralph Norman of South Carolina and Marjorie Taylor Greene of Georgia. Their lawyer, Christopher Wiest, argued Thursday that the mechanism the House is using to impose the mandate – with fines that are docked from offenders’ paychecks – violates the Constitution.
As of last month, Greene had been fined $48,000 for not wearing a mask in the areas of the Capitol it’s required.
She and the other challengers claim the policy violates the 27th Amendment because it changes members’ compensation without an intervening election, as well as the First Amendment’s free speech protections.
On Thursday, Walton held a hearing on the House’s request that the court dismiss the lawsuit. House General Counsel Doug Letter argued that the suit should be thrown out on the basis of the Constitution’s Speech or Debate Clause, which provides immunity for certain conduct that lawmakers engage in as part of their legislative duties. The House is also arguing that the suit should be dismissed for a failure to make a claim.
Walton made several comments that signaled sympathy for House Speaker Nancy Pelosi’s reasons for wanting to incentivize mask-wearing. He questioned an assertion by the Republicans’ lawyer that because the members’ refusal to wear masks did not disrupt the House floor’s proceedings, the conduct fell outside of the Constitution’s allowance of punishments “for disorderly behavior.”
“Considering the grave nature of what we are experiencing,” Walton asked Wiest, was he saying that Pelosi had to wait and put people at risk before action can be taken that could be considered disorderly?
When Wiest said some people might disagree with the message the House was supposedly sending with the mask requirement, Walton said, “That’s why we have so many people dying.”
At this phase in the proceedings, however, Walton is limited in what he can consider in deciding whether to dismiss the case. After asking Letter early in the hearing for statistics on lawmakers, staff and Capitol Police who are vulnerable to Covid-19, the judge acknowledged he might not be able to take such information into account at this stage of the litigation.
Walton said he hoped to issue an opinion on the House’s request to dismiss the case within the next 30 days if his calendar permits.